Lords Sitting of 21 July 1977

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Leicester.

SKYTRAINS: US PERMIT
Lord GISBOROUGH: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they are satisfied that the United States Skytrain is fair to Laker Airways.
Lord ORAM: My Lords, the Government consider that the conditions attached to the United States permit for Laker Airways Skytrain are both onerous and unreasonable. Nevertheless, Laker Airways have announced that the Skytrain service will start in September.
Lord GISBOROUGH: My Lords, I thank the noble Lord for that Answer, which was not what I expected. May we have an assurance that, in the event that British Airways followed with a similar service, it would be without any form of public funds but on a purely commercial basis?
Lord ORAM: My Lords, consideration will have to be given to other applications for this kind of service. There have been reports of Pan-Am and TWA entering into this kind of business and we shall have to wait until their proposals are finalised.
Lord O'HAGAN: My Lords, would the Minister think it a good idea if our new Ambassador to the United States travelled on Skytrain to see for himself whether the set conditions are fair?
Lord BOYD-CARPENTER: My Lords, will the Government contemplate imposing similarly onerous conditions on any reciprocal American Skytrain service?
Lord ORAM: As I have indicated, my Lords, we shall have to consider any fares filed by the United States airlines in order to compete with Skytrain. I understand that the airlines are considering their proposals within IATA this week, but I do not know when they will be ready to file their applications. We shall have to await that situation.

NUCLEAR EXPLOSIONS AND THE ENVIRONMENT
3.8 p.m.
Lord KENNET: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether under the UK/USSR Joint Environmental Protection Agreement they have discussed either the Soviet Union's Northern River Reversal Programme, including the use of nuclear explosives, or the recently reported accidental nuclear explosion which is understood to have taken place in the Soviet Union in 1957 or 1958, and, if so, with what result.
Baroness STEDMAN: My Lords, there have been no formal discussions under the UK/USSR Joint Agreement on Co-operation in the Field of Environmental Protection on either matter, though some of the environmental implications of the river reversal scheme have been discussed informally by a delegation of water experts visiting the USSR under the Agreement.
Lord KENNET: My Lords, are the Government aware that it is very good that at least there have been informal discussions? Should there not be discussions on the terrible nuclear accident which has been reported? Nobody should be ashamed of an accident. Could we not learn lessons from them that we could then build into our own planning for the future of our nuclear industry? As for the river reversal scheme, given that it is likely to increase the level and decrease the salinity of the water in the Arctic and is likely to change the rainfall pattern all over central Asia, is it really acceptable that at a time of new and

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intense climatic instability worldwide, such as we now have, such matters should go undiscussed formally and, if possible, multilaterally?
Baroness STEDMAN: My Lords, so far as the accident is concerned, we know no more than what has been reported in the Press. So far as discussions are concerned, I understand that the International Atomic Energy Authority, which is concerned with the peaceful uses of nuclear energy, has established an advisory group on the usefulness of peaceful nuclear explosions, and the Soviet Union are making a positive contribution to the group's work. So far as the river reversal programme is concerned, from the informal discussions which we have had we understand that the Soviet Union are very well aware of the potential risks to the Arctic icecap and that they are carrying out an extensive programme of research at all stages to ensure that the risks do not materialise.
Lord AVEBURY: My Lords, is the noble Baroness aware that, although the Soviet Union have denied that this accident ever took place, in scientific journals a number of papers have appeared by Russian authors on the contamination of fresh-water lakes by large volumes of radio nucleoli and that, because the current Windscale inquiry is examining the question of the possible contamination of the Irish Sea by the effluent from Windscale, it might be extremely relevant to have further data as a result of the Soviet experience? Would the noble Baroness make further inquiries into this incident with a view to ascertaining what actually took place and what measures the Soviet Union have for defending themselves in this area?
Baroness STEDMAN: My Lords, as I said earlier, we have no official reports of the nuclear incident other than what we have read in the Press. So far as any application to the Windscale inquiry is concerned, I am sure noble Lords will accept that I could not pronounce on anything to do with that while the inquiry is in progress.
Lord WYNNE-JONES: My Lords, have Her Majesty's Government any evidence, either of their own or from the
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United States, that such an accident ever occurred?—because on the scale which is suggested it would almost certainly have been detected by both the United States and this country, and probably by other countries as well.
Baroness STEDMAN: No, my Lords; we have no information at all other than what we have read in the scientific Press.

"FOOD FROM OUR OWN RESOURCES" AND FISH
3.11 p.m.
Lord KENNET: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether the new version of the White Paper Food from Our Own Resources which has been announced for next year will, unlike the earlier version, cover fish and, if not, why not.
Lord STRABOLGI: My Lords, the 1975 White Paper did not extend to fishery matters because the Government recognised that the fishing industry faced major uncertainties, placing it in a fundamentally different position from that of agriculture and necessitating separate consideration. That remains the Government's view today.
Lord KENNET: My Lords, is it really the Government's view that, if an industry faces major uncertainties, that is a reason for not considering it in a White Paper or a Green Paper? Should that not be a reason for considering it? If the uncertainties are present, as indeed they are, is it not possible to take maximum and minimum estimates of what may be the yield of fish in our waters in the future and to base certain arguments thereon? Without these, the White Paper as a whole will be virtually valueless. On the other hand, would they not provide useful ammunition for our negotiations in Brussels as well as for public education?
Lord STRABOLGI: My Lords, circumstances generally in the agricultural and horticultural sectors are such that strategic planning is feasible. A comparable facility does not exist, nor can

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it exist, until the Common Fisheries Policy and other matters affecting future fishing opportunities have been resolved.
Baroness EMMET of AMBERLEY: My Lords, may I ask the Minister whether the committee, made up partly of the fishing industry and partly of the Ministry, which I understand have been considering the difficulties that the fish farming community encounter, are going to report soon, and whether we shall have some information on this matter?
Lord STRABOLGI: My Lords, we are still awaiting their report.
Lord BRUCE of DONINGTON: My Lords, is my noble friend aware that the European Economic Commission is already setting up its own separate directorate-general to deal with the whole question of fisheries? Therefore, would it not be convenient for us also to publish a separate White Paper dealing exclusively with the aspects of the fishing industry connected with the European side of it?
Lord STRABOLGI: My Lords, I do not think so, because this is very much a changing situation. Community agreement was reached in certain aspects of conservation matters, as I announced in your Lordships' House recently. Ministers will return to this question at further meetings of the Council in October.
Lord GLENKINGLAS: My Lords, does the Minister not agree that, important though the fishing industry perhaps is, there are also (to use his phrase) very great difficulties continuing in the agricultural industry? This does not prevent the Government from producing a White Paper, but does seem to prevent their doing anything about it. Will he therefore ask his colleagues to include fishing and agriculture in a White Paper, and do something about both?
Lord STRABOLGI: My Lords, one of the difficulties about fishing is that, while we have control of our agricultural produce, we have no control over the fish. They may spawn in one place and migrate hundreds of miles outside Community boundaries. I am afraid the fish have not heard of the Community.
Viscount THURSO: My Lords, is the noble Lord aware that this does not
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apply to fish at fish farms? Why cannot fish farms be included in the White Paper?
Lord STRABOLGI: My Lords, fish farming is at the moment being considered by the fish farming industry, which will come to the Government with further recommendations, and we shall then have to consider this matter. I may say that, with regard to fish farming, it can affect only a very small proportion of our fish supplies —2,000 tons at the moment, as against 850,000 tons of landed deep-sea fish.
Baroness EMMET of AMBERLEY: My Lords, could the noble Lord not agree that this is because fish farming has not been sufficiently encouraged?
Lord STRABOLGI: No, my Lords. There are also difficulties in producing fish; difficulties of breeding, and so on. It is not the same as producing motor cars. Furthermore, we are limited by the water in this country.
Lord JANNER: My Lords, on the question of fish farming, may I ask my noble friend whether he has been in communication with the fish farmers of Israel, who have established a very highly developed fish farming industry there? Perhaps that would help the Government and those who are in the fish farming industry here to produce very much more than is being produced at present.
Lord STRABOLGI: My Lords, the fish produced in large quantities in Israel is carp, which is not suitable for the British Market.
Lord KENNET: My Lords, has not the main line of my noble friend's answers been a classic case of: first decide what to do and then define the problem?
Lord STRABOLGI: No, my Lords; because we are dealing with indefinables, and not with academic questions.

MULTIPLE SCLEROSIS: PRESCRIPTION CHARGES
3.16 p.m.
Baroness YOUNG: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government why those suffering from multiple sclerosis are excluded from the groups of persons entitled to an exemption from, or a refund of, prescription charges.
Lord WELLS-PESTELL: My Lords, the list of medical conditions which qualify for automatic exemption from prescription charges was the maximum on which agreement was possible with representatives of the medical profession. However, sufferers from multiple sclerosis who are housebound can claim exemption as having continuing physical disability which prevents them from leaving their residences except with the help of another person. The noble Baroness will know that exemption is also available on grounds of age or income; and, where exemption cannot be claimed, the prepayment certificate is available for those who need frequent prescriptions.
Baroness YOUNG: My Lords, in thanking the noble Lord for that full reply, may T ask him whether it would be possible for reconsideration to be given to the question of the exclusion of those suffering from multiple sclerosis from the list of illnesses for which an exemption can be claimed? Secondly, does he not think that, in the case of people who suffer from multiple sclerosis but who are just sufficiently able to leave their house, it is very hard that they are not eligible for this help in the way that other sufferers are eligible?
Lord WELLS-PESTELL: My Lords, I have some sympathy with the point of view which the noble Baroness puts forward. Our difficulty is that when the arrangements for exemption of those with specified medical conditions were discussed with the British Medical Association in 1968, the profession made it perfectly clear that they could agree to exemption only for readily identifiable medical conditions which called automatically for continuous long-term medication. That was in 1968. The list of exempt specified medical conditions has been periodically reviewed by all Governments since that date in consultation with the medical profession, and it was last discussed with the British Medical Association
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in 1976, but I regret to say that it was not possible to agree to any extension. I do not think I can take it beyond that, but that is the position.
Lord WINSTANLEY: My Lords, does the noble Lord recollect that this provision was originally made to fulfil a commitment made by the then Prime Minister to exempt the chronic sick? Does he agree that, far from exempting the chronic sick, it merely exempts a group of people suffering from any one of a small number of chronic ailments, most of which, with the exception of diabetes, are very rare? In these circumstances, does the noble Lord not think that it is high time we reviewed this list again, particularly with a view to considering multiple sclerosis but also certain psychiatric and circulatory disorders which require long-term continuous medication?
Lord WELLS-PESTELL: My Lords, I thought I had made it clear that a succession of Governments had, since 1968, tried to get this extended with the BMA and have not succeeded. The reason why this is so is only part of what the noble Lord has said. The profession's representatives are unwilling that doctors should have to make discretionary judgments about individual patients seeking exemption. They did not feel that they could accept responsibility for identifying, for the purpose of exemption, conditions other than those specified. A succession of Governments have tried to get this reviewed since 1968.
Lord GEORGE-BROWN: My Lords, is the Minister aware that this raises a very serious issue? If successive Governments have taken the view that this is a medical condition which ought to qualify the sufferer for exemption, it is not satisfactory that the BMA should tell the Government or this House that it cannot be done. We do not accept that when other trade unions try to impose their will. At least, we say that we do not. Many in this House do not see why we should treat doctors differently. Should not this Government, backed by Parliament, tell the BMA, "Sorry, but Parliament has decided that this is a case for exemption from the requirements"?
Lord WELLS-PESTELL: My Lords, the questions that have been raised in this

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House this afternoon can do nothing but good. I will see that they are conveyed to my right honourable friend in the hope that he may feel able to do something about the matter.
Baroness VICKERS: My Lords, can the noble Lord say how many cases of this disease exist? Does he realise that this is a very long-term disease and that it will be very desirable if some help can be given to the sufferers because this is a disease of which very little is known and for which there appears to be no cure? Will the noble Lord look into this to see the number involved and to push for action in the future?
Lord WELLS -PESTELL: My Lords, I cannot give the numbers off-hand without notice. I would remind the noble Baroness that sufferers from multiple sclerosis can claim exemption if their physical disability makes them house-bound. That helps only a small number and I take your Lordships' view about the need for this to be more widely applied.
Lord SEGAL: My Lords, has not the Department its panel of expert medical advisers? Cannot they be guided by the advice of their own panel instead of by the advice of the BMA?
Lord WELLS-PESTELL: My Lords, I think that I am treading on thin ice here. I will take note of my noble friend's observations.
Lord PLATT: My Lords, although I have great sympathy with anyone who is suffering from this horrible disease, did not the noble Baroness, Lady Vickers, put her finger on the spot, perhaps unwittingly, when she said that there is no cure. Am I not right in thinking that if a cure or a powerful drug which could cause amelioration of the symptoms were to be discovered tomorrow it would be put immediately on to the list?
Lord WELLS-PESTELL: My Lords, the crucial phrase in the present agreement is "continuous long-term medication". It may be necessary to look at that in the light of what has transpired here this afternoon.
Baroness EMMET of AMBERLEY: My Lords, does the noble Lord not
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think that it is terrible to make people choose between declaring themselves house-bound or having their medication free?
Lord WELLS-PESTELL: My Lords, they cannot declare themselves housebound. That has to be established as a medical fact.
Baroness WOOTTON of ABINGER: My Lords, can my noble friend tell us what is the position about diabetics? They are, mainly, not house-bound. Do they get free prescriptions?
Lord WELLS-PESTELL: My Lords, they do. I was at some pains not to list all those who are entitled to exemption—largely because some of the words I cannot pronounce.

EDUCATION IN SCHOOLS IN ENGLAND AND WALES
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, with the leave of the House, at a convenient moment after 3 p.m., my noble friend Lord Donaldson of Kingsbridge will repeat a Statement on Education in Schools in England and Wales.
THE SUMMER RECESS
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, the House will also want to know the dates of the Summer Recess. It is proposed that the House should rise on Friday, 29th July, and return on Wednesday, 26th October.

BRITISH LINEN BANK ORDER CONFIRMATION BILL
Report received.
Then, Standing Order No. 43 having been suspended (pursuant to Resolution of 13th July), Bill read 3a, and passed.

CRIMINAL LAW BILL [H.L.]
3.5 p.m.
The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich): My Lords, I beg to move that the Commons Amendments be now considered.
Moved, That the Commons Amendments be now considered.—(Lord Harris of Greenwich.)
On Question, Motion agreed to.

CRIMINAL LAW BILL [H.L.]

  COMMONS AMENDMENTS
  [References are to[Bill 108]as first printed for the Commons]
  1 Clause 1, page 2, line 14, leave out from "offence" to end of line 17 and insert
  "which is not punishable with imprisonment"
  2 Clause 3, page 2, line 43, leave out from "indictment" to end of line 46 and insert—

  "(a) in a case falling within subsection (2) or (3) below, to imprisonment for a term related in accordance with that subsection to the gravity of the offence or offences in question (referred to below in this section as the relevant offence or offences); and

  (b) in any other case, to a fine.

  Paragraph (b) above shall not be taken as prejudicing the application of section 30(1) of the Powers of Criminal Courts Act 1973 (general power of court to fine offender convicted on indictment) in a case falling within subsection (2) or (3) below".
  3 Page 3, leave out from beginning of line 11 to end of line 8 on page 4 and insert—
  "(3) Where in a case other than one to which subsection (2) above applies the relevant offence or any of the relevant offences is punishable with imprisonment, the person convicted shall be liable to imprisonment for a term not exceeding the maximum term provided for that offence or (where more than one such offence is in question) for any one of those offences (taking the longer or the longest term as the limit for the purposes of this section where the terms provided differ).
  In the case of an offence triable either way the references above in this subsection to the maximum term provided for that offence are references to the maximum term so provided on conviction on indictment".
  4 Clause 4, page 4, line 9, at beginning insert "Subject to subsection (1A) below"
  5 Clause 4, page 4, line 13, at end insert—
  "(1A) In relation to the institution of proceedings under section 1 above for conspiracy to commit—

  (a) an offence which is subject to a prohibition by or under any enactment on the institution of proceedings otherwise than by, or on behalf or with the consent of, the Attorney General, or

  (b) two or more offences of which at least one is subject to such a prohibition.

  subsection (1) above shall have effect with the substitution of a reference to the Attorney General for the reference to the Director of Public Prosecutions".
  6 Clause 4, page 4, line 15, after "offence" insert "which is not a summary offence".
  7 Clause 5, page 5, line 13, leave out "one year" and insert "six months".
  8 Clause 5, page 5, line 22, leave out "indictable".
  9 Clause 5, page 5, line 23, leave out "on conviction on indictment".
  10 Clause 5, page 5, line 29, at end insert—
  "(6A) Indictment and attempt to commit the offence of conspiracy (whether the conspiracy incited or attempted would be an offence at common law or under section 1 above or any other enactment) shall cease to be offences.".
  The MINISTER of STATE, DEPARTMENT of EDUCATION and SCIENCE (Lord Donaldson of Kingsbridge): My Lords, with the leave of the House, I beg to move that this House doth agree with the Commons in their Amendments Nos. 1 to 10. Amendment No. 1 is included in the interests of simplification; it does not alter the sense of the clause. The purpose of Amendments Nos. 2 and 3 is to make a change in the penalty provisions for conspiracy to commit offences carrying a penalty of imprisonment of one year or less and for conspiring to commit offences which do not carry a penalty of imprisonment. The effect is to make the penalty of imprisonment for conspiracy to commit an offence carrying a penalty of one year's imprisonment or less the same as for the related substantive offence. The penalty for conspiracy to commit an offence which is not punishable by imprisonment is limited to a fine. Amendments Nos. 8 and 9 are consequential. These Amendments are in line with the Law Commission's basic principle that the penalty for a conspiracy offence should be the same as, or closely related to, the penalty for the substantive offence.
  Amendments Nos. 4, 5 and 6 correct a defect in the drafting of Clause 4, whereby, in the case of conspiracy to commit summary offence for which the consent of someone other than the Director of Public Prosecutions is required, the consent of both the Director of Public Prosecutions and the other person would be required for the conspiracy charge. This would be unnecessary and administratively clumsy. The effect of the Amendments is to require the Attorney-General's consent for the conspiracy charge if his consent is required for the substantive offence and otherwise the Director of Public Prosecution's consent alone.
  Amendment 7 is a drafting Amendment, consequential on Amendment No. 24

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  which we shall come to later. The effect of Amendment No. 10 is to abolish the offence of incitement to conspire and attempt to conspire. During discussion of the Bill in Standing Committee in another place, the Government accepted that it was desirable to make it clear that there is to be no offence of "attempting" to conspire. The reason for this is that conspiracy is an inchoate offence, the essence of which is an agreement to do something unlawful and it is too remote from behaviour that actually does damage to have an offence of "attempting" to get someone to agree, or "inciting" them to agree. This Amendment has the support of the Law Commission.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Donaldson of Kingsbridge.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  11 Clause 6, page 6, line 21, leave out subsection (3) and insert—
  "(3) In any proceedings for an offence under this section it shall be a defence for the accused to prove—

  (a) that at the time of the alleged offence he or any other person on whose behalf he was acting was a displaced residential occupier of the premises in question; or

  (b) that part of the premises in question constitutes premises of which he or any other person on whose behalf he was acting was a displaced residential occupier and that the part of the premises to which he was seeking to secure entry constitutes an access of which he or, as the case may be, that other person is also a displaced residential occupier".

  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 11. This Amendment has been linked with Amendment No. 14. With the leave of the House, it may also be convenient for me to refer to Amendments Nos. 15, 19, 20 and 29 to 35 which can then be dealt with formally later. These Amendments are essentially all concerned with the definition of "premises". When the Bill was before this House previously, the noble Earl, Lord Mansfield, asked during the Committee stage whether the Government thought it satisfactory for the Bill not to include a comprehensive definition of "premises". I undertook to look at the point. There was a Government
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  Amendment at Report stage to make it clear that in Clauses 6 and 8 "premises" meant a building and the adjacent land used in connection with the building. I argued that there were some dangers in going further by attempting an exhaustive definition of "premises", and that it might be better to leave it to the courts to reach a sensible interpretation in the light of the facts of each particular case. I do not think that the noble Earl, Lord Mansfield, was persuaded by that argument and he pressed the case for a full definition.
  Subsequently, the Government reexamined the matter and concluded, as the noble Earl hoped we would, that it is unsatisfactory for Parliament not to define "premises", particularly in view of the question whether "premises" should or should not include the access to those premises. The Amendments cover that point and, indeed, a number of others. I beg to move.
  Moved, That this House cloth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)
  The Earl of MANSFIELD: My Lords, I will not detain your Lordships for more than a second or two, but will merely say that I am grateful to the Government and, in particular, to the noble Lord, Lord Harris of Greenwich, for considering the matter and, if I may say so, coming to a more satisfactory conclusion than when the Bill was last before your Lordships' House.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  12 Page 6, line 37, leave out paragraph (b).
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 12 and with the consequential Amendment to Amendment No. 12 (Amendment 12A) standing in my name. With the leave of the House I will speak about Amendment 22. The main effect of these Amendments is to provide a more appropriate scale of penalties for the offences in Clauses 6 and 8. Having considered the views of interested parties both inside and outside Parliament, the Government are content that the maximum penalties available on summary conviction are adequate. I beg to move.
  Moved, That this House doth agree with the Commons in the said Amendment. —(Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  AMENDMENT CONSEQUENTIAL ON COMMONS AMENDMENT No. 12
  12A Page 6, line 36, leave out second ("or").
  Lord HARRIS of GREENWICH: My Lords, I beg to move.
  Moved, That Amendment No. 12A be agreed to.—(Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  13 Page 6, line 39, after "constable" insert "in uniform".
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 13. At the same time, perhaps I might speak to Amendments Nos. 21, 23, 25, 27 and 28. When this Bill was before this House, the noble Lord, Lord Wigoder, suggested that the powers of arrest under this Part of the Bill should be limited to constables in uniform. I undertook to consider the matter further and I subsequently wrote to the noble Lord with the Government's first thoughts, that it was not necessary to make this change in the Bill. Since then we have, as on the previous matter, reflected again, and there was a discussion in Standing Committee on this point. We have come to the conclusion that it is right to make the Amendment which is now before the House, which meets the point of the noble Lord, Lord Wigoder. I beg to move.
  Moved, That this House doth agree with the Commons in the said Amendment. —(Lord Harris of Greenwich.)
  Lord LEATHERLAND: My Lords, one petty point. The penultimate line on page 6, which is in the area of the Amendment we are considering, says:
  "A constable may arrest without warrant anyone who is, or whom he with reasonable cause, suspects to be, guilty of n offence under this section".
  Does that mean "an offence" or "no offence"? Both those phrases include the letter "n" which stands in isolation at the foot of this page.
  Lord HARRIS of GREENWICH: That is a shrewd point, my Lords, made by my noble friend. I will look into it. Clearly it is a typing mistake which can be dealt with without any formal Amendment coming before the House.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  14 Page 7, line 4, at end insert "or of any access to any premises".
  3.35 p.m.
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in Amendment No. 14. This was discussed with Amendment No. 11. I beg to move.
  Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  15 Clause 7, page 7, line 5, leave out "subsection (2) below" and insert "the following provisions of this section".
  16 Clause 7, page 7, line 6, after "trespasser" insert "after having entered as such"
  Lord DONALDSON of KINGS-BRIDGE: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 15 and 16 and doth disagree with the Commons in their Amendments Nos. 17, 18, 19 and 20 but propose the Amendments on the Order Paper in the name of my noble friend Lord Harris in lieu thereof.
  Amendment No. 15 has already been debated with Amendment No. 11. Amendment No. 16 is technical. The effect is to secure that in no circumstances could the offence in Clause 7 be committed by a person who had entered premises lawfully, for example, to occupy them as a licensee, even though he had subsequently become a trespasser as a result of the withdrawal of his licence. I am sure that all noble Lords would agree that a person who had occupied premises lawfully ought not to have to leave them instantly on request in order to avoid arrest and conviction of a criminal offence. The civil procedure should be used in such cases.
  When Amendments Nos. 17 and 18 were debated in another place, my right honourable friend the Home Secretary said that the Government saw difficulties

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  about extending the scope of Clause 7 in the way the Amendments proposed because of the danger of abuse and the difficulties of enforcement. After the Amendments were debated at Report stage in another place there was further discussion between the Government and the Opposition about the possibility of some more limited extension of Clause 7 which would be less prone to abuse and more straightforward to enforce than the Amendments we have before us. It was agreed that Amendments Nos. 17 and 18 should be incorporated in the Bill on the understanding that they would be replaced at this stage of the Bill by something along the lines of these Government Amendments, which I will now briefly explain.
  The position of the displaced residential occupier is left undisturbed. But, in addition, the benefits of Clause 7 are extended to a "protected intending occupier", that is a person who has been allocated a tenancy by a local authority or a housing association and a person who has bought the freehold or a long lease on premises which he requires for occupation by himself as a residence. In each case there are supplementary provisions to prevent abuse, to ensure that the trespasser clearly understands his liability to be convicted of a criminal offence, and to give a police constable a firm basis on which to exercise the powers conferred by the clause. In the case of a local authority tenant there will have to be a certificate signed by the authority concerned to confirm that the tenancy has been allocated. In the case of a person who has bought a house or flat, he will have to make a properly witnessed statement to declare his interest in the premises and that he requires them for his own occupation.
  Amendments Nos. 19 and 20 belong with the group of Amendments on the definition of "premises" and "access" which we have already debated. They have to be replaced as a consequence of the Amendments proposed in lieu of Amendments Nos. 17 and 18. These Amendments extend the scope of Clause 7 to catch a carefully defined but important set of circumstances. We believe that there are sufficient safeguards against abuse and against the police being unable to act because it is too difficult to establish the position. They deserve to be welcomed by the House. I beg to move.
  Moved, That this House doth agree with the Commons in their Amendments Nos. 15 and 16.—(Lord Donaldson of Kingsbridge.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  17 Page 7, line 8, at end insert—
  "(1A) Subject to the following provisions of this section, any person who is on any premises used wholly for residential purposes as a trespasser is guilty of an offence if he fails to leave those premises on being required to do so by or on behalf of a person who, not being a displaced residential occupier, is nevertheless entitled to occupy the premises and who, at the time when the requirement to leave the premises is made, both intends within six weeks either to occupy the premises himself or (while remaining so entitled) to secure their occupation by some other person and informs the trespasser or causes him to be informed accordingly. The provisions of this subsection shall not make guilty of an offence any person holding over after the expiry of a tenancy or licence."
  AMENDMENTS MOVED IN LIEU THEREOF
  17A Page 7, line 8, leave out from first ("of") to end of line 8 and insert—
  ("(a) a displaced residential occupier of the premises; or
  (b) an individual who is a protected intending occupier of the premises by virtue of subsection (1A) or subsection (1C) below.
  (1A) For the purposes of this section an individual is a protected intending occupier of any premises at any time if at that time—

  (a) he has in those premises a freehold interest or a leasehold interest with not less than 21 years still to run and he acquired that interest as a purchaser for money or money's worth; and

  (b) he requires the premises for his own occupation as a residence; and

  (c) he is excluded from occupation of the premises by a person who entered them, or any access to them, as a trespasser; and

  (d) he or a person acting on his behalf holds a written statement—

  (i) which specifies his interest in the premises; and

  (ii) which states that he requires the premises for occupation as a residence for himself; and

  (iii) with respect to which the requirements in subsection (1B) below are fulfilled.

  (1B) The requirements referred to in subsection (1A)(d)(iii) above are—

  (a) that the statement is signed by the person whose interest is specified in it in the presence of a justice of the peace or commissioner for oaths; and

  429

  (b) that the justice of the peace or commissioner for oaths has subscribed his name as a witness to the signature;

  and a person is guilty of an offence if he makes a statement for the purposes of subsection (1A)(d) above which he knows to be false in a material particular or if he recklessly makes such a statement which is false in a material particular.
  (1C) For the purposes of this section an individual is also a protected intending occupier of any premises at any time if at that time—

  (a) he has been authorised to occupy the premises as a residence by an authority to which this subsection applies; and

  (b) he is excluded from occupation of the premises by a person who entered the premises, or any access to them, as a trespasser; and

  (c) there has been issued to him by or on behalf of the authority referred to in paragraph (a) above a certificate stating that the authority is one to which this subsection applies, being of a description specified in the certificate, and that he has been authorised by the authority to occupy the premises concerned as a residence.

  (1D) Subsection (1C) above applies to the following authorities:—

  (a) any body mentioned in section 14 of the Rent Act 1977 (landlord's interest belonging to local authority etc.);

  (b) the Housing Corporation; and

  (c) a housing association, within the meaning of section 189(1) of the Housing Act 1957, which is for the time being either registered in the register of housing associations established under section 13 of the Housing Act 1974 or specified in an order made by the Secretary of State under paragraph 23 of Schedule 1 to the Housing Rents and Subsidies Act 1975.")

  17B Page 7, line 8, line 9, leave out ("this section") and insert ("subsection (1) above")
  17C Page 7, line 8, line 14, leave out ("this section") and insert ("subsection (1) or (1B) above")
  17D Page 7, line 8, line 20, leave out ("this section") and insert ("subsection (1) above")
  Lord DONALDSON of KINGS-BRIDGE: My Lords, I beg to move that this House doth disagree with the Commons in their Amendment No. 17 and propose Amendments Nos. 17A to 17D in lieu thereof.
  Moved, That the House doth disagree with the Commons in the said Amendment and propose Amendments Nos. 17A
  430
  to 17D in lieu thereof.—(Lord Donaldson of Kingsbridge.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  18 Page 7, line 13, at end insert "or, as the case may be, a person within the description provided in subsection (1A)."
  AMENDMENT MOVED IN LIEU THEREOF
  18A Page 7, line 13, line 12, leave out from ("occupier") to end of line 13 and insert ("or protected intending occupier of the premises or a person acting on behalf of a displaced residential occupier or protected intending occupier").
  Lord DONALDSON of KINGS-BRIDGE: My Lords, I beg to move that this House doth disagree with the Commons in their Amendment No. 18 but propose Amendment No. 18A in lieu thereof.
  Moved, That the House doth disagree with the Commons in their Amendment No. 18 but propose Amendment No. 18A in lieu thereof.—(Lord Donaldson of Kingsbridge.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  19 Page 7, line 13, at end insert—
  "(2A) In any proceedings for an offence under this section it shall be a defence for the accused to prove—

  (a) that the premises in question are or form part of premises used mainly for non-residential purposes; and

  (b) that he was not on any part of the premises used wholly or mainly for residential purposes."

  AMENDMENT MOVED IN LIEU THEREOF
  19A Page 7, line 13, at end insert—
  ("(2A) In any proceedings for an offence under subsection (1) above it shall be a defence for the accused to prove—

  (a) that the premises in question are or form part of premises used mainly for non-residential purposes; and

  (b) that he was not on any part of the premises used wholly or mainly for residential purposes.

  (2AA) In any proceedings for an offence under subsection (1) above where the accused was requested to leave the premises by a person claiming to be or to act on behalf of a protected intending occupier of the premises—

  (a) it shall be a defence for the accused to prove that, although asked to do so by the accused at the time the accused was requested to leave, that person failed at that time to produce to the accused such a statement as is referred to in subsection (1A)(d) above or such a certificate as is referred to in subsection (1C)(c) above; and

  431

  (b) any document purporting to be a certificate under subsection (1C)(c) above shall be received in evidence and, unless the contrary is proved, shall be deemed to have been issued by or on behalf of the authority stated in the certificate.").

  Lord DONALDSON of KINGS-BRIDGE: My Lords, I beg to move that this House doth disagree with the Commons in their Amendment No. 19 but propose Amendment No. 19A in lieu thereof.
  Moved, That the House doth disagree with the Commons in their Amendment No. 19 but propose Amendment No. 19A in lieu thereof.—(Lord Donaldson of Kingsbridge.)
  On Question. Motion agreed to.

  COMMONS AMENDMENT
  20 Page 7, line 13, at end insert—
  "(2B) Any reference in the preceding provisions of this section to any premises includes a reference to any access to them, whether or not any such access itself constitutes premises, within the meaning of this Part of this Act."
  AMENDMENT MOVED IN LIEU THEREOF
  20A Page 7, line 13, at end insert—
  ("(2B) Any reference in the preceding provisions of this section, other than subsections (1A) to (1C) above, to any premises includes a reference to any access to them, whether or not any such access itself constitutes premises, within the meaning of this Part of this Act; and a person who is a protected intending occupier of any premises shall be regarded for the purposes of this section as a protected intending occupier also of any access to those premises.").
  Lord DONALDSON of KINGS-BRIDGE: My Lords, I beg to move that this House doth disagree with the Commons in their Amendment No. 20 but propose Amendment No. 20A in lieu thereof.
  Moved, That this House doth disagree with the Commons in their Amendment No. 20 but propose Amendment No. 20A in lieu thereof.—(Lord Donaldson of Kingsbridge.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  21 Page 7, line 18, after "constable" insert "in uniform"
  22 Clause 8, page 7, line 34, leave out paragraph (b).
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 21 and 22. At the same time I would point out that these were discussed with Amendments Nos. 12 and 13.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT AS AN AMENDMENT TO THE BILL, CONSEQUENTIAL ON COMMONS AMENDMENT No. 22
  22A Page 7, line 33, leave out second ("or")
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 22A.
  Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  23 Page 7, line 36, after "constable" insert "in uniform".
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 23.
  Moved, That this House doth agree with the Commons in the said Amendment. —(Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  24 Clause 9, page 8, line 38, leave out from "both" to end of line 40 and insert—
  "(5A) Proceedings for an offence under this section shall not be instituted against any person except by or with the consent of the Attorney General".
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 24. This Amendment has two effects: first, it brings the penalties into line with those in the rest of Part II of the Bill and in addition it requires the consent of the Attorney-General before a prosecution may be brought. In view of the possible international and public policy implications of the occupation of diplomatic premises, this seems to us a sensible precaution. It is quite a common

  433
  ground for requiring the consent of the Attorney-General.
  Moved, That this House doth agree with the Commons in the said Amendment. —(Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  25 Page 8, line 41, after "constable" insert "in uniform".
  Lord HARRIS of GREENWICH: My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 25. We discussed this with Amendment No. 13.
  Moved, That this House doth agree with the Commons in the said Amendment. —(Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  26 Page 9, line 8, at end insert—
  "(1A) Subsection (1) above does not apply unless the judgment or order in question was given or made in proceedings brought under any provisions of rules of court applicable only in circumstances where the person claiming possession of any premises alleges that the premises in question are occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation of the premises without the licence or consent of the person claiming possession or any predecessor in title of his".
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 26. It replaces a subsection which your Lordships' House removed. Clause 10 makes it a criminal offence to resist or obstruct a court officer executing a court judgment or order for the possession of premises. The Law Commission recommended the offence on the grounds that there is an increasing tendency for those occupying property without licence seriously to obstruct court officials seeking to enforce court orders. The Commission pointed out that it is mainly in relation to the enforcement of orders for possession under the summary procedure that the problems of enforcement have arisen on a fairly widespread scale.
  The summary procedure under Order 113 of the Rules of the Supreme Court and Order 26 of the County Court Rules
  434
  were introduced in 1970 to provide a quick remedy especially for cases involving squatters. Because that is where the greatest problem lay, the Commission propose that the offence should be limited to the obstruction of court officers executing orders under the summary procedure.
  When the clause was considered by your Lordships' House, some concern was expressed about this restriction and an Amendment in the name of the noble and learned Viscount, Lord Dilhorne, to remove it was carried at Report stage. The subsection was restored in another place in the Standing Committee. The Government do not seek to reintroduce it on the ground that an important principle is at stake—clearly, all court orders should be obeyed—but in considering proposals to extend the criminal law, we must have regard to the practicalities of the situation and in particular to the likely burden which the clause would impose upon the police. This point, I know, has been fully argued at previous stages of the Bill and your Lordships will not want me to rehearse again the Government's argument on this point. I hope your Lordships' House will show its regard for the many other difficult and important problems with which the police have to grapple by now agreeing with the other place in this Amendment.
  Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  27 Page 9, line 16, after "constable" insert "in uniform"
  28 Clause 11, page 9, line 27, after "constable" insert "in uniform".
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 27 and 28. They were discussed with Amendment No. 13.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  29 Page 9, line 28, leave out "or other place"
  30 Clause 12, page 9, line 30, at beginning insert—
  "(1A) In this part of this Act—

  (a) "premises" means any building, any part of a building under separate occupation, any land ancillary to a building, the site comprising any building or buildings together with any land ancillary thereto, and (for the purposes only of sections 10 and 11 above) any other place; and

  (b) "access" means, in relation to any premises, any part of any site or building within which those premises are situated which constitutes at ordinary means of access to those premises (whether or not that is its sole or primary use).

  (1B) References in this section to a building shall apply also to any structure other than a movable one, and to any movable structure, vehicle or vessel designed or adapted for use for residential purposes; and for the purposes of subsection (l) above—

  (a) part of a building is under separate occupation if anyone is in occupation or entitled to occupation of that part as distinct from the whole; and

  (b) land is ancillary to a building if it is adjacent to it and used (or intended for use) in connection with the occupation of that building or any part of it".

  31 Clause 12, page 9, line 32, leave out "the premises" and insert "those premises, or any access to those premises".
  32 Clause 12, page 9, line 41, at end insert—
  "(2A) A person who by virtue of subsection (1) above is a displaced residential occupier of any premises shall be regarded for the purposes of this Part of this Act as a displaced residential occupier also of any access to those premises."
  33 Page 10, line 13, leave out "vacate" and insert "leave"
  34 Page 10, line 13, line 14, leave out from "shall" to end of line 16 and insert "anyone cease to be a displaced residential occupier of any premises by virtue of any such allowance of time to a trespasser".
  35 Page 10, line 13, line 21, leave out subsection (6).
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 29 to 35 en bloc. They were discussed with Amendment No. 11.
  Moved, That the House doth agree with the Commons in the said Amendments.— (Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  36 Clause 15, page 11, line 37, leave out "(4) Subsection (1) above is" and insert—
  "(3A) The following offences under the Night Poaching Act 1828 shall be
  436
  triable only summarily (instead of only on indictment), namely—

  (a) offences under section 2 of that Act (assaults by persons committing offences under the Act);

  (b) offences under section 9 of that Act (entering land, with others, armed and for the purpose of taking or destroying game or rabbits).

  (4) Subsections (1) and (3A) above are"
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 36. With the leave of the House, I should also like to speak now to Amendments Nos. 41, 73, 79, 85, 86, 101, 104, 105, 135,160, 161,180 and 195. The objects of this fairly formidable number of Amendments are, first, to deal with an oddity known as the conditionally indictable offence and, secondly, to update and rationalise penalties for offences under the Night Poaching Act.
  Moved, That the House doth agree with the Commons in the said Amendment.— (Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  37 Page 14, line 5, at end insert—
  "(1A) Before so considering, the court—

  (a) shall cause the charge to be written down, if this has not already been done, and read to the accused; and

  (b) shall afford first the prosecutor and then the accused an opportunity to make representations as to which mode of trial would be more suitable."

  38 Page 14, line 5, line 16, leave out "provisions of subsections (1) and (2) above" and insert "preceding provisions of this section"
  39 Page 14, line 5, line 23, leave out from "shall" to "in" in line 25 and insert "explain to the accused"
  40 Clause 22, page 15, line 3, leave out from "indictment," to end of line 39 and insert "the court shall tell the accused that the court has decided that it is more suitable for him to be tried for the offence by a jury, and shall proceed to inquire into the information as examining justices."
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 37 to 40 en bloc. The object of this group of Amendments is to simplify the procedure set out in Clauses 20 to 22 for determining the mode of trial of an "either way" offence. The changes have been suggested to us by the Justices' Clerks Society, and we think

  437
  they represent a significant improvement in the proposed procedures.
  Moved, That the House doth agree with the Commons in the said Amendments.—(Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  41 Clause 30, page 22, line 37, at end insert—
  "(2A) A person who (by virtue of section 15 above) is summarily convicted of an offence under section 2 (assaults by persons committing offences under the Act) or section 9 (entering land, with others, armed and for the purpose of taking or destroying game or rabbits) of the Night Poaching Act 1828 shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding £500, or to both (instead of to a maximum penalty on conviction on indictment of seven years imprisonment or a fine or both for an offence under the said section 2, or of fourteen years imprisonment or a fine or both for an offence under the said section 9)."
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 41. This was discussed with Amendment No. 36.
  Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  42 Clause 31, page 23, line 6, at end insert—
  "(1A) This subsection applies to the following enactments (by virtue of which certain byelaws may make persons contravening the byelaws liable on summary conviction to a fine not exceeding £20), namely—

  (a) section 183 of the Public Health Act 1875 and section 237 of the Local Government Act 1972 (local authorities' byelaws) in their application to byelaws under any public general Act; and

  (b) paragraph 5 of Schedule 6 to the Weights and Measures Act 1963 (byelaws about solid fuel), including that paragraph as extended to wood fuel by paragraph 4 of Part IV of Schedule 7 to that Act.

  (1B) In the enactments to which subsection (1A) above applies for any reference to £20 there shall be substituted a reference to £50; and any provision in force at the coming into force of this subsection which—

  (a) is contained in any byelaw made under a public general Act by virtue of—

  438

  (i) any enactment to which subsection (1A) above applies; or

  (ii) section 251 of the Local Government Act 1933; and

  (b) specifies £20 as the maximum fine which may be imposed on summary conviction in respect of a contravention of, or offence under, any byelaw mentioned in that provision,

  shall have effect as if it specified £50 instead (but with no change by virtue of this subsection in the maximum daily fine, if any, for which it provides).
  The preceding provisions of this subsection are without prejudice to subsection (2) below."
  43 Clause 31, page 23, line 23, leave out "that" and insert "any such".
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 42 and 43. I should also like to speak at the same time to Amendments Nos. 129, 176 and 178. The first Amendment is the one of substance. The remainder are consequential. The Amendment increases from £20 to £50 the maximum fine which may be prescribed in local authority by-laws made under the more important by-law parent Acts. It also increases to £50 the maximum fine for all by-law offences made under the relevant enactments which carry £20 and are already in force. The increases, I should tell the House, have been welcomed by the local authority associations. The new maximum fine of £50 is in line with the lowest point on the new scale of summary maximum fines and is generally appropriate for the sort of offences covered by these by-laws.
  The increases apply to existing by-laws carrying a maximum of £20 made under the relevant Acts and will save local authorities having to remake all their recent by-laws to carry a higher maximum fine. A similar procedure was followed in the Criminal Justice Act 1967. My Lords, I beg to move.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Harris' of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  44 Page 24, line 19, at end insert—
  "(7A) In section 67(6) of the Medicines Act 1968, for '£400' (which gives the maximum fine on summary conviction which can be imposed by regulations under section 66 for contravention of the regulations) there shall be substituted '£1,000'."
  45 Clause 32, page 24, line 43, at end insert—
  "(3) In paragraph 1(1) (d) of Schedule 2 to the European Communities Act 1972, for the words '£5 a day' (which give the maximum daily fine with which an offence created under the powers conferred by section 2(2) of that Act can under those powers be made punishable on summary conviction) there shall be substituted the words '£100 a day'."
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 44 and 45. It may be helpful if I deal at the same time with Amendments Nos. 74, 75, 100, 107 to 112 inclusive, 115, 117 to 119 inclusive, 133 and 137. The Amendments all involve an increase in the maximum summary fine for purely summary offences. I do not propose to go into detail about each one of them, since they are all fairly self-evident. But I can assure the House that each proposed increase is reasonable, and each fits in with the new scale of maximum summary fines provided in Schedule 6. Several of the increases are designed to bring financial maxima into line with those in the Bill as introduced, or those which were inserted at an earlier stage in this House. I commend these increases to the House. My Lords, I beg to move.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  46 After Clause 32, insert the following new Clause—
  Penalty for offences under s. 3 of Explosive Substances Act 1883
  "For an offence under section 3 of the Explosive Substances Act 1883 (attempt to cause explosion, or making or keeping explosive, with intent to endanger life or property in the United Kingdom or the Republic of Ireland) the maximum term of imprisonment which may be imposed by a court in Great Britain shall be increased from twenty years to life".
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 46. With the leave of the House, I shall speak at the same time to Amendments Nos. 76, 80 and 136. These Amendments change the penalty in Section 3 of the Explosive Substances Act 1883 for conspiracy to cause an explosion from 20 years' imprisonment to life
  440
  imprisonment. This is in line with the penalty structure for conspiracy in the Bill. The Amendments to Clause 48 extend the provision to Scotland.
  Part I of the Criminal Law Bill prescribes comprehensive rules to determine the maximum penalty for a conspiracy by reference to the penalty for the object of the conspiracy. In its present form, the Bill has no effect on Section 3 of the Explosive Substances Act 1883, which makes it an offence to conspire to cause an explosion with a penalty of 20 years' imprisonment. The Law Commission made no recommendation for change here, apparently because they did not feel it to be their business. But this leaves Section 3 of the 1883 Act as the only example of conspiracy known to us, where the penalty for conspiracy to commit an offence will still be less than the penalty for the offence itself once the Bill becomes law. This is in no way an academic question since, as the House may recall, in the QE2 explosives trial at Winchester Mr. Justice Ackner sentenced two men to 20 years' imprisonment under Section 3, but suggested that life imprisonment should have been available to him. My Lords, I beg to move.
  Moved, That this House doth agree with the Commons in the said Amendment. —(Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  47 After Clause 35, insert the following new clause—
  Supervision Orders
  " .—(1) In section 12 of the Children and Young Persons Act 1969 (power to include requirements in supervision orders) there shall be inserted after subsection (3) the following subsections:
  '(3A) This subsection applies to—

  (a) any supervision order made under section 7(7) of this Act in respect of a child or young person found guilty as there mentioned; and

  (b) any supervision order made in respect of a person under section 21 (2) of this Act by a court on discharging a care order made in respect of him under the said section 7(7).

  (3B) Subject to the following subsection (but without prejudice to subsection (2) or (4) of this section) a supervision order to which subsection (3A) of this section applies may require the supervised person to do as mentioned in all or any one or more of paragraphs

  441
  (a) to (c) of this subsection, that is to say—

  (a) to be of good behaviour;

  (b) to comply, for as long as the order remains in force, or until the end of some shorter period specified in the order, with such requirements as may be so specified, being requirements which, having regard to the circumstances of the case, the court making the order considers appropriate for the purpose of preventing the commission of further offences by the supervised person;

  (c) if he is of compulsory school age, to comply, for as long as he is of that age and the order remains in force, with such arrangements for his education as may from time to time be made by his parent, being arrangements for the time being approved by the local education authority.

  Expressions used in paragraph (c) of this subsection and in the Education Act 1944 have the same meaning there as in that Act.
  (3C) A requirement to do as mentioned in paragraph (b) of the preceding subsection shall not be included in a supervision order to which subsection (3A) of this section applies unless the supervised person, or if he is a child, his parent or guardian consents to its inclusion; and there shall not be included in such an order by virtue of the said paragraph (b)—

  (a) any requirement that would involve the co-operation of a person other than the supervisor and the supervised person unless that other person consents to its inclusion; or

  (b) any requirement requiring the specified person to reside with a specified individual or live at a specified place; or

  (c) any such requirement as is mentioned in subsection (4) of this section.'.

  (2) In section 15 of the Children and Young Persons Act 1969 (variation and discharge of supervision orders), after subsection (2) there shall be inserted the following subsection—
  '(2A) If while a supervision order to which section 12(3A) of this Act applies is in force in respect of a person who has not attained the age of eighteen it is proved to the satisfaction of a juvenile court, on the application of the supervisor, that the supervised person has failed to comply with any requirement included in the supervision order in pursuance of section 12 or section 18 (2)(b) of this Act, the court may, whether or not it also makes an order under subsection (1) of this section—

  (a) order him to pay a fine of an amount not exceeding £50; or

  (b) subject to section 16(10) of this Act, make an attendance centre order in respect of him.'

  442
  (3) The preceding provisions of this section, and any related amendment or repeal provided for in Schedule 9 or 10 to this Act, shall not apply in relation to supervision orders made before the coming into force of those provisions.".
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 47. With the leave of the House, I will speak at the same time to Amendments Nos. 98, 149, 150, 151 and 181. The purpose of these Amendments is to provide additional or more flexible powers to courts and supervisors in regard to children and young people placed under supervision, which are intended to strengthen the order and increase its effectiveness, particularly in dealing with the more difficult and recidivist offenders. Amendment No. 47 implements Recommendation 23 of the Eleventh Report of the Expenditure Committee in another place, that when making a supervision order the court should have the power to specify conditions with which the juvenile must comply, and that for any breach of these conditions (which would be with consent) the supervisor should be able to return the juvenile to the court, which would have the power to impose a fine or an attendance centre order while continuing the supervision order. Amendment No. 47 is limited to supervision orders made following criminal proceedings.
  The new clause provides sanctions by an amendment of Section 15 of the 1969 Act. The court will have power to impose a fine or, in the case of a boy, to make an attendance centre order. These sanctions would apply not only to the new requirements, but to existing requirements under Section 12 and Section 18(2)(b) of the 1969 Act, including requirements to participate in intermediate treatment.
  Amendment No. 149 implements a recommendation of the Personal Social Services Council for more flexible powers of supervisors in arranging intermediate treatment for children and young people placed under their supervision. It is hoped that the greater discretion provided will add to the effectiveness of the order, particularly in controlling and helping the more difficult offenders. My Lords, I beg to move.
  Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)
  On Question, Motion agreed to.

EDUCATION IN SCHOOLS IN ENGLAND AND WALES
3.56 p.m.
Lord DONALDSON of KINGS-BRIDGE: My Lords, with the leave of the House, I wish to repeat a Statement made by my right honourable friend the Secretary of State in another place. She said this afternoon:
"With permission, Mr. Speaker, I should like to make a Statement about education in schools in England and Wales, on which my right honourable friend the Secretary of State for Wales and I are today presenting a Green Paper to the House.
"The Green Paper assesses the present stage of development of our schools and makes proposals and recommendations for their future development. Substantial progress has been made towards full comprehensive reorganisation of secondary education, and the Government are determined to press ahead to complete this process so that secondary education shall be equally available to all children over the full range of ability. Having secured that aim, the Government look to a period of stability in organisation and of improvement in educational standards.
"The Green Paper points to the need for positive discrimination to help those most in need; those handicapped in different ways including the disadvantage of a deprived environment; the ethnic minorities; travelling children and others; special measures are needed, both to help the pupils themselves and to encourage the recruitment of teachers with those attributes which can be of special value to disadvantaged children.
"It also underlines the importance of offering equal educational opportunities to girls as well as boys: the curriculum needs to reflect this, from the study of science to training in parenthood and domestic responsibilities.
"The Green Paper recognises that schools benefit in many ways from
444
building close links with the community; and that the groups most deeply involved with a school must always be the teachers and the parents. The Taylor Committee Report to be published in September will have more to say on this subject. Meanwhile, a circular on a matter of special importance—the information which is available to parents about their children's schools—is already out for consultation and comment and should be issued early in the new school year.
"It must be our concern together with our partners in the school education system in England and Wales—the local education authorities and the teachers—that the school curriculum should match the aptitudes and aspirations of boys and girls and of their parents for them as well as responding to national needs. The Government reject any idea of a central control of the curriculum; but they believe that all those with responsibility for the schools should consider whether these needs are now properly met. We therefore propose to ask each local education authority to consult with the local representatives of the teachers and with parents, employers and trades unions, in carrying out a review of their curricular arrangements. This review, and a joint study of what it reveals, will precede the preparation of any curriculum advice which we might then issue to local education authorities.
"The Green Paper also deals with the accountability of schools and the need for a soundly based means of assessment for the educational system as a whole, for the schools, and for individual pupils. The assessment of the school system as a whole rests with Her Majesty's Inspectorate who are moving towards quantitative analyses of what is done—for example, through the current surveys of primary and secondary schools which complement their traditional methods. Secondly, local education authorities need to be able to identify schools' problems in performance and to take remedial action. But league tables' based on standardised tests in isolation can be seriously misleading, as they neglect many important factors such as the school catchment area, the school's own objectives and external factors.

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Thirdly, the assessment of individual pupils is a continuous process in which the teacher's own competence and knowledge are of prime importance. The development of diagnostic tests and greater consistency of practice in their use will be encouraged by the Education Department, but the Government reject the view that universal national testing basic literacy and numeracy is desirable.
"The Green Paper proposes further study of the concept of a leaving certificate for all pupils, and it stresses the need for high standards of professional accuracy in record-keeping of pupils' progress. The keeping of records should be included in the review of curricula arrangements.
"Any plans for improving the curriculum and raising standards must depend in large part on the full understanding and support of the teaching profession and on the quality of its members. We are concerned to improve the quality and relevance of initial training in a number of ways. First, we shall set higher minimum standards for entry and we shall require a qualification in English and in Mathematics; we also aim to continue the recruitment of mature people to teaching who can bring useful experience of the outside world into the profession, as well as more teachers from ethnic minorities. We are seeking ways of improving the college curriculum and the professional relevance of the training process.
"As the number of newly qualified teachers entering the schools falls, we intend to consult our partners regarding better arrangements for the induction period for newly qualified teachers entering the schools. They need support in a number of ways. The arrangements might involve some reduction in new teachers' workload, and experienced members of staff could be given special responsibility for overseeing their work and progress. I intend to consult the local authority associations and the teachers about these proposals and about other possible developments—for example, whether new teachers might be given an interim status when they complete their training and receive fully qualified status upon the satisfactory completion of probation. The Green Paper also envisages a major initiative in in-service training. This
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would build upon the wide variety of provision already made and would aim to include the development of specialist centres, on a regional or national level.
"May I now turn to an aspect of our proposals which I should like to deal with in rather more detail. The Green Paper points to the need for employing authorities to develop more systematic approaches to the recruitment, training and deployment of their teachers during the period of declining pupil numbers. This changed situation will give scope for authorities to give more positive attention to the career development of their teachers, and to consider, for example, whether their present arrangements are such as to secure the best appointments to headships. I am confident that they will wish to proceed in the closest consultation with the teachers' representatives in all these matters.
"Various aspects of all these matters may need to be reviewed. I, for my part, pledge my willingness to join sympathetically in any discussions, especially where action on my part may be required. The overwhelming majority of teachers give devoted and efficient service throughout their careers. A difficult problem is posed by the small minority whose performance falls below an acceptable level of efficiency, for a variety of reasons—for example, from the effects of stress. Any cases of this nature will raise sensitive personal issues, and I expect authorities to offer the fullest consultation to the teachers' associations in working out procedures for dealing with them which clearly satisfy the requirements of fair practice.
"The Green Paper proposes the further development of links, both nationally and locally, between schools and productive industry; for more direct contacts between those working in schools and in industry to increase understanding on both sides. In particular, the Green Paper emphasises the need for a much wider development of careers education to widen the scope and expectations of boys and girls in their career plans and to take fuller advantage of the contributions which employers and trade unionists can make. The curriculum, interpreted in its widest sense, should be more outward

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looking; it should place more emphasis on preparation for adult life in an internationally orientated, democratic and industrial society. Parents, local industry and the community at large all have a valuable part to play in helping schools to meet these needs.
"Mr. Speaker, there can be no end to debate on the education of our children, but there are times for self-examination and for the setting down of new objectives and new ways of reaching them. I believe this is such a time, and I look forward with confidence to the continued progress of our schools along the lines we have set out in the Green Paper".
My Lords, that is the end of the Statement.
4.6 p.m.
Lord BELSTEAD: My Lords, I am grateful to the noble Lord, Lord Donaldson of Kingsbridge, for repeating the Government's Statement on their Green Paper on Education. It would have been nice to have had a copy of this Statement before it was made.
Several noble Lords: Hear, hear!
Lord BELSTEAD: My Lords, I acquit the noble Lord in particular and the Government Front Bench in general of any discourtesy, because they are always extremely kind in this respect, but it makes me wonder whether the extraordinary gyrations which seem to have been going on in the Cabinet—The Times Educational Supplement referred to it as some members of the Cabinet crying "Forward" and others crying "Back"—led to the typing of this Statement literally being finished only in time for it to be put into the nervous hands of the Government spokesman on this occasion.
Lord DONALDSON of KINGS-BRIDGE: My Lords, I am not nervous.
Lord BELSTEAD: My Lords, the noble Lord has given us quite a lot of information; but the one thing which he did not say was that today's Statement stems from the Prime Minister's speech
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at Oxford nine months ago, in which he identified, in particular, ways in which he thought that education could contribute to the recovery in our industrial and commercial life, which is so desperately needed. I am bound to say that in the nine months which have passed those problems have become more and not less apparent. I am also bound to say that having listened to the noble Lord, Lord Donaldson of Kingsbridge, I believe that this Statement comes dangerously near to saying that our education is good but ought to be better and that it is to this particular wheel that the Government are putting their shoulder—and very little else. May I substantiate that belief.
The Statement tells us that there is to be a review of the curriculum in each local education authority. Each local education authority will undertake this review, in company with widespread consultations, and then, as I understand the Statement, they will come back again to the Government from whom they have received this remit. Then it may be that the Government will indulge in giving some central advice. However, the Statement which has been made today has been preceded by a tremendous fanfare—by what has been called "the great debate". I had understood that in the great debate the local education authorities would be consulting representatives of the Government all over the country, and all those other bodies, to find out what everybody thought and that, as a result, the Government would then say what was to happen. I had genuinely thought that the Government would give the signal for some action today.
I should like to ask the Government whether they are aware that there is something of a crisis of confidence in the Education Service and that at the heart of the crisis lies the Government's insistence upon reorganising schools in the way which they believe to be right—on a totally blanket comprehensive basis. The Government have been warned on all sides in both Houses of Parliament that, although whether or not this is the right policy is arguable, one thing which is absolutely certain is that this policy will do no good to sixth-form teaching in this country.
There are certain points in this Statement which bear upon that view and which I

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welcome. Indeed, it would be churlish of me not to do so. May I pick out two of them. The first relates to the teacher training proposals, and these I broadly welcome. I am sure that the Secretary of State is on the right lines, and the House will probably welcome the opportunity to debate at a later date this particular aspect of the Green Paper. The second relates to the sending out of prospectuses by schools, about which the noble Lord, Lord Elton, spoke when the Education Act was going through your Lordships' House.
However, today's Statement leaves unanswered some absolutely basic questions. First, should there be a common core to the curriculum? It was mentioned, but the Government presumably have no view. Should there be some national assessment of pupils at the start of their secondary courses? Again, assessment was mentioned but presumably the Government have no view on this basic question. Then we come to the members of Her Majesty's Inspectorate, the numbers of which are very much below par—so much so that the Secretary of State is apparently no longer able to have independent schools inspected for recognition status and has indeed told representatives of the independent schools that HMIs are not inspecting maintained schools in the same way. What is being done about that? Again, apparently, the Government have no view.
How are we to overcome the shortage of mathematics teaching?—the very thing that the Prime Minister laid his finger on when he made his Oxford speech. What is Government policy on strengthening sixth forms in a comprehensive system? Here—and I am nearly at the end—may I remind the Government that the Secretary of State's panacea—having more and more sixth form colleges—has been fundamentally criticised, not by the Opposition in either House of Parliament but by none other than the Chief Education Officer for the Inner London Education Authority, as being a panacea which is totally unworkable. Should there be an inquiry into religious education? I should have thought that this would have been the one opportunity that the Government could have taken, in answer to representations from all parts of your Lordships' House, to make a Statement
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on that. Apparently, the Government have no views.
My Lords, I apologise for being so critical, but I had really thought that this Statement was going to be something of a mountain, which is what we had been led to believe. It sounds perilously as though it were a mouse, but to reach a final conclusion we must wait to read the document in full.
4.12 p.m.
Lord BEAUMONT of WHITLEY: My Lords, I, too, should like to thank the noble Lord for repeating that Statement. As the noble Lord, Lord Belstead, has said, it is difficult to react to it without having been able to see a copy, particularly since it is a very complicated Statement. Luckily, we have been able to have the Green Paper for 35 minutes, but 35 minutes is not a long time in which to study a Green Paper.
On the whole, we on these Benches very much welcome this Green Paper. It contains a large number of sensible proposals, a number of which we ourselves have been putting forward for some time past. I shall not take up the time of your Lordships' House by enumerating them, but I should not like the one or two criticisms that I have to make to detract from the fact that I think this a considerable advance.
It is a pity that we are apparently not going to discuss the possibility of altogether doing away with an externally monitored examination at 16. We are still about the only country in Europe which has one and we do not appear seriously to be considering this important reform. I think it a great pity that, as far as I can see, the Green Paper does not deal with the major problem of the relationship between schools and colleges of further education. The noble Lord, Lord Belstead, mentioned the whole question of sixth form colleges. In my view, this is something which ought to be explored in depth and we should like to know rather more than we do about Government thinking on the matter.
I have one small caveat. Of course, we should all welcome high standards for teachers and I very much welcome the Secretary of State's thinking that, at a time when there is widespread unemployment among teachers, we must concentrate

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on seeing that we have the best teachers. I hope, though, that initial qualifications will be flexible. I am highly alarmed by the feeling that all teachers must be both numerate and literate to quite a large degree. Of course we should all like to be that but it is not entirely necessary. I am reminded that Professor C. S. Lewis was totally incapable of passing his mathematics responsions to get into Oxford University. He never would have got in had he not been exempted by the War, and we should have lost one of the greatest English scholars this country has ever had. This raising of arbitrary barriers must be subject to exceptions and must be made flexible, but there does not appear to be any sign of that in the Green Paper.
The only main question I have to ask is, where do we go from here? We now have a Green Paper and presumably, since that is the purpose of Green Papers, we are now going to continue with the great debate up and down the country about that Green Paper. Are we to have a White Paper and, if so, when are we to have it? Where do we go from here, my Lords?
4.5 p.m.
Lord DONALDSON of KINGS-BRIDGE: My Lords, I am grateful to the two noble Lords who have spoken—perhaps rather more grateful to the latter than to the former. The noble Lord, Lord Belstead, criticised the Green Paper really because it was not a White Paper. That seems to me to be rather short-sighted. The problems of education are colossal, enormous, extremely difficult and controversial. If I had come forward with a core curriculum and half a dozen other things that the noble Lord asked for, I should have got the stick from everywhere, and quite rightly. This must be dealt with slowly and carefully. The series of meetings which my right honourable friend has had about the country has done two things: to some extent it has told her what people are thinking, and to some extent it has told her how much people differ. Therefore I think she would be absolutely wrong to come out now with a series of hard and fast propositions.
Take, for example, the question of the core curriculum. The noble Lord says the Government have no views on this. I
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apologise for the fact that the noble Lord has not had long to study this Green Paper, but when he has been able to study it he will see that the Government have perfectly clear views on the matter. The Government hold the view that a total curriculum centrally enforced is not what is required; but the Government also think that there probably ought to be a core, which is agreed—not enforced but agreed—among local authorities, of certain subjects which should not be eroded. That is a tentative position to take up, but it is a perfectly sensible one and, in my view, quite a satisfactory one. I do not think I can satisfy the noble Lord that my right honourable friend has done what she ought to have done; I can only satisfy him that I think she has done what she ought to have done, and I think it would have been a great mistake if she had done what he thinks she ought to have done.
In relation to the one comment made by the noble Lord, Lord Beaumont of Whitley, about standards, in the first place nothing is laid down for certain here, which is the virtue of the Paper because there is still room to discuss on the lines he raised; but I think that to say that because one man of genius managed to get to the top without passing an examination is not a reason for not giving anybody an examination. I think one should be very careful not to use such arguments.
Lord BEAUMONT of WHITLEY: My Lords, if the noble Lord will give way, that was not the point that I was making. The point I was making was that one does not have to be numerate in order to teach something like English extremely well, and that people who are in that unfortunate position should not be stopped from being able to pursue a teaching career.
Lord DONALDSON of KINGS-BRIDGE: My Lords, I accept the difference, which seems to be marginal. I have to confess that I think a modest equipment of numeracy is probably desirable in nine cases out of ten, even for teaching English. I will say no more. I am grateful to noble Lords for having received the Paper, and I apologise on behalf of my right honourable friend that your Lordships received it so late.
Baroness VICKERS: My Lords, I apologise for not being here for the

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opening remarks of the noble Lord, but in view of the fact that infant classes have so few male teachers and that there are so many single or divorced women now, would it not be advisable to have in the schools more male teachers—this, I gather, is not mentioned in the Green Paper—in order to give the necessary support to the children?
Lord DONALDSON of KINGS-BRIDGE: My Lords, the Green Paper refers to the desirability of bringing more mature teachers into use, but it does not specify whether they should be men or women. The suggestion made by the noble Baroness is something which should be looked at very carefully.
Lord BOYD-CARPENTER: My Lords, can the noble Lord explain why, when the Government are, very properly, consulting parents, teachers and local education authorities on all sorts of important matters such as the curriculum, there is not included in that consultation the question of the retention of a limited number of selective grammar schools, where that is locally desired? Why is that excluded? Will the noble Lord, Lord Donaldson of Kingsbridge, also explain as regards the Government's attitude to selection, why selection is permitted, as I understand it, in the case of children who show proficiency in music and dancing but not in academic ability?
Lord DONALDSON of KINGS-BRIDGE: My Lords, we spent goodness knows how many hours discussing those points. If the noble Lord, Lord Boyd-Carpenter, had been here and had listened to those discussions he would not need to ask that question to which I propose to make no answer at the moment.
Lord BOYD-CARPENTER: My Lords, is the noble Lord, Lord Donaldson of Kingsbridge aware that that reply ensures that he will have to discuss the matter a great deal more.
Baroness GAITSKELL: My Lords, would it not be true to say that the answer to the question of the noble Lord, Lord Boyd-Carpenter, is that the Government are interested in educating most children—not just a few, and not just a select few?
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They do not want to have entirely selective education; they want to educate most children to the highest degree of their potentiality.
Lord DONALDSON of KINGS-BRIDGE: My Lords, I am very grateful to the noble Baroness, Lady Gaitskell.

CRIMINAL LAW BILL [H.L.]
4.22 p.m.
Consideration of Commons Amendments resumed.

CRIMINAL LAW BILL [H.L.]

  COMMONS AMENDMENTS
  48 Insert the following new clause:
  Execution throughout United Kingdom of warrants of arrest
  ".—(1) A warrant issued in Scotland or Northern Ireland for the arrest of a person charged with an offence may be executed in England or Wales by any constable acting within his police area; and subsection (4) of section 102 of the Magistrates' Courts Act 1952 (execution without possession of the warrant) shall apply to the execution in England or Wales of any such warrant.
  (2) A warrant issued in England, Wales or Northern Ireland for the arrest of a person charged with an offence may be executed in Scotland by any constable appointed for a police area in like manner as any such warrant issued in Scotland.
  (3) A warrant issued in England, Wales or Scotland for the arrest of a person charged with an offence may be executed in Northern Ireland by any member of the Royal Ulster Constabulary or the Royal Ulster Constabulary Reserve; and sub-sections (4) and (5) of section 159 of the Magistrates' Courts Act (Northern Ireland) 1964 (execution without possession of the warrant and execution on Sunday) shall apply to the execution in Northern Ireland of any such warrant.
  (4) A warrant may be executed by virtue of this section whether or not it has been endorsed under section 12, 14 or 15 of the Indictable Offences Act 1848 or under section 27, 28 or 29 of the Petty Sessions (Ireland) Act 1851.
  (5) Nothing in this section affects the execution in Scotland or Northern Ireland of a warrant to which section 123 of the Bankruptcy Act 1914 applies".
  49 Insert the following new clause:
  Service of summonses and citation throughout United Kingdom
  ".—(1) A summons requiring a person charged with an offence to appear before a court in England or Wales, may, in such manner as may be prescribed by rules of court, be served on him in Scotland or Northern Ireland.
  (2) A summons requiring a person charged with an offence to appear before a court in Northern Ireland may, in such

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  manner as may be prescribed by rules of court, be served on him in England, Wales or Scotland.
  (3) Citation of a person charged with a crime or offence to appear before a court in Scotland may be effected in any other part of the United Kingdom in like manner as it may be done in Scotland, and for this purpose the persons authorised to effect such citation shall include, in England and Wales and Northern Ireland, constables and prison officers serving in those parts of the United Kingdom."
  50 Insert the following new clause:
  Transfer of fine orders
  " . Schedule (Transfer of fine orders) to this Act (which confers powers on courts in Northern Ireland, and extends the existing powers of courts in England, Wales and Scotland, to make transfer of fine orders) shall have effect".
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 48, 49 and 50 which, with the consent of the House, I shall move en bloc. I should like at the same time to speak to Amendments Nos. 77, 89, 90, 92 to 94, 99, 120, 130, 165, 170, 175, 179, 183, 185 to 187 and 189 to 193. This formidable looking set of Amendments is concerned with the service and execution of process throughout the United Kingdom. As your Lordships will recall, we had a debate on this subject during the Report stage of the Bill, I think on 10th March, when the noble Lord, Lord Campbell of Croy, moved on behalf of the noble Lord, Lord Inglewood, Amendments with much the same objectives as these Amendments.
  On that occasion I indicated that the Government shared the concern which was felt about the inability of the police to prosecute people who commit minor offences, especially road traffic offences, in England, Wales or Scotland and who then return to Northern Ireland, where they are immune from prosecution because the law does not allow summonses to be served there. I said that consultations were already in progress about the formulation of proposals for legislation, and that while we could not guarantee that these would have been concluded in time to introduce the appropriate Amendments, we would certainly do our best. These Amendments are the result and your Lordships can judge of the complexity involved by the number and, indeed, the length of the Amendments.
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  The important Amendments are Nos. 48, 49, 50 and 120. Amendment No. 48 enables a warrant of arrest issued in one part of the United Kingdom to be executed in another part of the United Kingdom without the need to have the warrant backed, that is to say, signed by a magistrate in the other jurisdiction—an unnecessary formality which at present has to be gone through. Amendment No. 49 enables a summons which requires a person charged with an offence to appear before a court in one part of the United Kingdom, to be served on him in any other part of the United Kingdom. Amendment No. 50 confers powers on courts in Northern Ireland to make transfer of fine orders, and extends the existing English and Scottish powers to make such orders so as to enable them to make transfers to, and receive transfers from, Northern Ireland. The Schedule—Amendment No. 120—sets out in detail the procedure for doing this.
  I think that these formidable Amendments demonstrate the problem which the noble Lord, Lord Campbell of Croy, identified at the Report stage. It would be only right to pay a considerable tribute to the officials not only in my own Department but in others, who have wrestled with this problem and come up with this solution which I think will meet with the satisfaction of the House.
  Moved, That this House doth agree with the Commons in the said Amendments. —(Lord Harris of Greenwich.)
  Lord CAMPBELL of CROY: I should like to express the appreciation both of myself and my noble friend Lord Inglewood for the fact that the Government have been able to put down this large number of Amendments clearly dealing with a complicated situation. I assume from what the noble Lord, Lord Harris of Greenwich, has said, that they will remove the anomaly which existed and will enable summonses to be served on operators of vehicles in Northern Ireland whose vehicles commit offences in Scotland, England or Wales. There are many more vehicles now coming over from Northern Ireland, and this has been an increasing source of grievance especially in South-West Scotland and North-West England.
  I, too, should like to pay a tribute to the work which the officials must have

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  carried out in the time between the Report stage and when these Amendments were considered in another place. I am sure that they will be welcomed, not only in the areas that I have mentioned but in other parts of the country where there has been this grievance about the apparent immunity of certain drivers of vehicles.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  51 Before Clause 36, insert the following new clause:
  Transfer of remand hearings
  ".—(1) A magistrates' court adjourning a case under—

  (a) section 6 of the Magistrates' Court Act 1952 (committal proceedings), or

  (b) section 14(1) of that Act (trial of information), or

  (c) section 19(4) above,

  and remanding the accused in custody may, if he has attained the age of seventeen, order that he be brought up for any subsequent remands before an alternate magistrates' court nearer to the prison where he is to be confined while on remand.
  (2) The order shall require the accused to be brought before the alternate court at the end of the period of remand or at such earlier time as the alternate court may require.
  (3) While the order is in force, the alternate court shall, to the exclusion of the court which made the order, have all the powers in relation to further remand (whether in custody or on bail) and the grant of legal aid which that court would have had but for the order.
  (4) The alternate court may, on remanding the accused in custody, require him to to be brought before the court which made the order at the end of the period of remand or at such earlier time as that court may require; and, if the alternate court does so, or the accused is released on bail, the order under subsection (1) above shall cease to be in force.
  (5) Schedule (Transfer of remand hearings) to this Act shall have effect to supplement this section."
  52 Insert the following new clause:
  Remand of accused aready in custody
  ".—(1) When a magistrates' court remands an accused person in custody and he is already detained under a custodial sentence, the period for which he is remanded may be up to 28 clear days.
  (2) But the court shall enquire as to the expected date of his release from that detention; and if it appears that it will be before 28 clear days have expired, he shall not be remanded in custody for more than 8 clear days or (if longer) a period ending with that date.
  (3) So long as he is detained under a custodial sentence, an application for him to be further remanded in custody may be made and determined without his appearance in court, provided that he is represented
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  by counsel or a solicitor who signifies the accused's consent to the application being heard in his absence".
  Lord HARRIS of GREENWICH: My Lords, I beg to move that the House doth agree with the Commons in their Amendments Nos. 51 and 52 which, with the consent of the House. I should like to move together. At the same time I should like to speak to Amendment No. 121. These Amendments are related because they all concern difficulties which can arise from the requirement that a person who was remanded in custody before trial must be brought back before a magistrates' court within eight days.
  Amendments Nos. 51 and 121 have been brought forward with the object of avoiding the lengthy journeys from prison to court for what are often routine remand hearings, in cases where both the prosecution and defence are not yet in a position to proceed. This is achieved by empowering a magistrates' court which is adjourning a case and remanding the accused in custody, to order that, for any subsequent remands, he is to be brought up before a magistrates' court nearer to the prison where he will be kept in custody which, in the Amendments we refer to as "the alternate magistrates' court". The order will transfer to the alternate court all the powers relating to further remands, including the power to grant bail and legal aid. But the alternate court will have no power to deal with the substance of the charge, that is, it will not be able to try him or to hold committal proceedings and so on. It is given jurisdiction for a very limited purpose and as soon as the prosecution and defence are ready to proceed with the substance of the matter, they will inform the alternate court which, at the next remand hearing will remand the accused back to the first court. We believe that these provisions will afford some significant relief to the prisons and to the police; and accordingly, I commend the Amendments to the House.
  Moved, That this House doth agree with the Commons in the said Amendments. —(Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  53 Insert the following new clause:
  Peremptory challenge of jurors
  " . The provisions of section 12(1) of the Juries Act 1974 shall be amended so as to substitute in paragraph (a) thereof 'three' for 'seven'."
  53A The Lord Gifford to move, That this House doth disagree with the Commons in their Amendment No. 53.
  [Amendment No. 53 A not moved.]
  Lord HARRIS of GREENWICH: My Lords, in the absence of my noble friend Lord Gifford I think that I should move that this House doth agree with the Commons in their Amendment No. 53.
  Section 12(1) of the Juries Act 1974 provides that a person on trial for an offence on indictment may challenge not more than seven jurors without cause and all or any of the jurors for cause. This new clause would have the effect of reducing from seven to three the number of challenges without cause, or peremptory challenges as they are normally called, permitted to each defendant in such circumstances. It reflects the growing criticism that the defendant's right of peremptory challenge is being increasingly abused by certain defence counsel who hope, by its manipulation, to secure a jury which they feel will be more likely to favour their client's case. Having considered these criticisms most carefully, the Government have come to the conclusion that it would be wrong to permit the present system of peremptory challenges, whereby each defendant can challenge up to seven jurors without showing cause, to continue unaltered.
  Moved, That this House doth agree with the Commons in the said Amendment. —(Lord Harris of Greenwich.)
  Lord WIGODER: My Lords, I am sorry that the noble Lord, Lord Gifford, is not here to move Amendment No. 53A because this is a matter that requires some little attention, and perhaps rather more attention than it received in the other place, where the issue was disposed of extremely rapidly with very little argument on either side. I have no intention of standing in in place of the noble Lord, Lord Gifford, because I support the Amendment as it was passed in another place—which is that there should be a reduction in the number of jurors who may be challenged without cause.
  I should like to make three comments on this proposal. First, there is not and there never has been any magic in the number seven, which is the present number of jurors who may be challenged without
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  cause. I suppose that there was a theoretical argument that seven was one more than half the number of the jury and therefore if one objected to a jury as a whole one could get rid of over half of them before the trial started. I doubt whether that argument has any force any longer; certainly it cannot have had since majority verdicts came into force, which means that the number seven no longer has any magic power about it. Therefore, a lesser number might well be substituted for the figure seven.
  Secondly, I hope that the noble Lord, Lord Harris of Greenwich, will forgive me if I dissociate myself as strongly as possible from his observation that the present right of challenge without cause has been abused. It has not been abused and it cannot be abused. There is a complete and absolute right in a defendant and, through a defendant, his legal representative to challenge a juror for any reason or for none, for good reason or for bad; because he does not like the colour of his hair or the colour of his skin; or because he does not like the political content of the newspaper that he happens to be carrying with him into the jury box. Any defendant, or any member of the Bar on a defendant's instructions, who has challenged seven jurors in those circumstances has been fully entitled to do so, and I am sure that the Bar would not accept the criticism that the system has in any way been abused. The system exists, with a complete, absolute unarguable right and it is, indeed, an abuse of language to suggest that any defendant can be abusing a system in exercising his rights.
  The third observation I wish to make—and it is this that leads me to think that it might be sensible to reduce the figure from seven to three—is that these days there are a number of very long trials in the course of which a very large number of defendants appear in the dock; many of us would say that very often there are too many defendants. However, it is not in any way unusual to start a long trial with 10, 15 or sometimes 20 defendants in the dock. Indeed, on one occasion I represented 38 defendants who could not all get into the dock because of sheer weight of numbers.
  At the beginning of a trial each defendant has at present a right to challenge seven jurors, which has to be taken into account.

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  One must take into account the fact that some jurors may be challenged for cause; one has to take into account the fact that if it is a long trial a large number of jurors who are called into the box will say that they cannot serve for reasons of personal hardship. In the result it is no exaggeration to say that before a long trial starts some 200 to 300 members of the public are called to court and wait at the back of the court in order that 12 of them might be chosen to serve on a particular jury.
  That is a very great waste of public time and public expense and it is a great inconvenience to those people who are called. It does not lead the jurors who are not chosen to respect our system of law. In these circumstances, it is perhaps right that the right of summary challenge—that is, of peremptory challenge—should be maintained but that a reduction in the numbers could properly be made without in any way impairing a defendant's right to a fair trial. Therefore, I venture to support the Amendment in the form in which it has come back from another place.
  The Earl of MANSFIELD: My Lords, I was intrigued by the remark of the noble Lord, Lord Wigoder, that counsel have never abused the right of peremptory challenge. I well remember that I used to abuse it when I defended robbers. I want to ask the noble Lord, Lord Harris of Greenwich, whether the system still continues. I have on occasions, in company with the noble Lord, Lord Wigoder, defended a number of "high-class robbers", if I may so call them, so I know what used to happen. We got hold of the roll of jurors at the Old Bailey and used to go down it; anyone who came from W.1 or S.W.3 was immediately challenged by one of us. Equally, if there was a lady on the jury who looked what I might call "well turned out and presentable" she also was challenged.
  There was absolutely no doubt that we could influence the composition of a jury if there were five or six robbers before a court by means of 35 challenges, so that eventually we got a layabout lot of unemployed males on the jury. If that system still prevails, I support Amendment No. 53. However, if it does
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  not and defendants really are left to peremptory challenge—which simply depends on the appearance of the would-be juror—then I think it is pointless.
  Lord HALE: My Lords, I am grateful to the noble Lord, Lord Wigoder, for his comments. Like the noble Lord, I am sorry that the noble Lord, Lord Gifford, did not move his Amendment. I imagine that he did not anticipate that we should have dealt with 50 or 60 Amendments by 4.30 p.m., including a Statement. I must say that I had the same feeling; I never thought that we should be able to do so either. When we move Amendment No. 20 with Amendment No. 78, Amendment No. 103 and Amendment No. 139, someone might wonder what the common or garden Back-Bencher can do except shuffle papers like a pack of cards and fail to find the ace.
  I entirely agree with the comment of the noble Earl, Lord Mansfield. In the provinces we used to obtain a copy of the jury list and probably in serious cases where our clients were liable to a considerable charge we looked down it —we usually employed a retired policeman for the purpose. If he came back on a case involving drink and said that one of the jurymen was the president of the teetotallers' Association, we put a tick against that man. In Ireland, where deep religious issues were involved, there used to be—and it was not considered to be terribly wrong—a famous Lord Chief Justice who was colloquially called "Peter the Packer" because he could pack any jury, and by some mysterious means when there was a Catholic in the dock 12 Protestants were invariably summoned to sit in the jury box. If he was asked his reasons—and he was a very cheerful and witty man—he would say, "It is the only way of getting a conviction in Ireland", which is true. On the other hand, it is not the duty of a solicitor or an advocate for the defence greatly to assist in securing a conviction. So it was a valuable right.
  I should not want to press this any further because, as one knows, the pressure on the courts and the multiplicity of actions in the courts make jury service a very considerable burden on people, and one many people are reluctant to undertake. In those circumstances, and with reluctance, I am not prepared to

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  suggest that opposition to the Commons Amendment goes any further. Whether or not it will be good I am not sure.
  4.10 p.m.
  Lord SIMON of GLAISDALE: My Lords, I should also like to support the Commons in their Amendment. As the noble Lord, Lord Wigoder, said, it is perhaps wrong to speak of an abuse of a constitutional right, but undoubtedly it is a misuse to use the right of challenge to get a jury which is other than what a jury should be—namely, a microcosm of the whole of our democratic society. It was always said that, in Ireland in the last century, the Crown counsel automatically challenged any man who came into the jury box without a collar on. Obviously if everybody without a collar has to stand by for the Crown, the jury is unlikely to be a microcosm of society. I entirely agree that where one has a multiplicity of defendants, to allow each to challenge without cause seven people coming into the jury box is inherently likely to get a jury which is other than a complete microcosm of society, and I think is a misuse of a constitutional process.
  Lord PONSONBY of SHULBREDE: My Lords, I, like the noble Lord, Lord Wigoder, am sorry that the noble Lord, Lord Gifford, has been unable to be here this afternoon to press his Amendment, because I must confess some worry about the Commons Amendment in this case. As has been said, the essence of our jury system is that a man is being tried by his fellow citizens, or by a microcosm of his fellow citizens as seen in the jury. It is important that it should be seen from the prisoner's point of view that the jury does in fact represent that microcosm of society.
  One can think of the cases when the person to be tried is a woman, for example, or is a member of a particular racial group, when the counsel defending a particular client will want to be sure that in fact that particular constituent of society as a whole is adequately represented in the jury. It may take a number of challenges in order to bring that section of the community on to the jury. Therefore, the fact that one is proposing to reduce the number of challenges from
  464
  seven to three seems to me to make it that much more unlikely that one will in fact get a microcosm of society as a whole on a particular jury.
  Lord HARRIS of GREENWICH: My Lords, I shall speak only briefly in reply because I think that all who have spoken have, broadly speaking, accepted the Commons Amendment, with the possible exception of my noble friend Lord Ponsonby. I would settle with the noble and learned Lord. Lord Simon of Glaisdale, for "misuse" of the present system rather than "abuse", if I can carry the noble Lord, Lord Wigoder, with me in that, although I am bound to say that what we were told by the noble Earl, Lord Mansfield, sounded rather more like abuse than misuse of the present system.
  The Earl of MANSFIELD: My Lords, I must set the record straight. When appearing on behalf of the Crown I used to stand by jurors on behalf of the prosecution just as shamelessly.
  Lord HARRIS of GREENWICH: My Lords, this has been a fascinating exercise, certainly, to a non-lawyer like myself, who has been aware of the mounting concern about the practice of a number of counsel in using the peremptory challenge very vigorously. I have found this a highly educational experience, as I think have all others who have sat here during this short debate.
  Let me give one or two examples of the sort of problem with which we have been confronted. I think that the noble Earl, Lord Mansfield, invited me to do just that. In a case at the Old Bailey in March 1973, seven defendants were charged with offences involving conspiracy to defraud. They initially challenged approximately 40 jurors off the jury and when, subsequently, following the arrest of another person in the same connection, a new jury was empanelled to try the case, they challenged another 22 potential jurors. In the opinion of the trial judge, those challenges seemed designed to secure a jury of people who would be unlikely to understand the intricacies of fraud. To me, that sounds an extremely disturbing situation.
  It is important to maintain the confidence of the accused person that he will

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  be tried fairly, and I think that what is provided for in these Amendments will achieve that. There will still be three peremptory challenges for every defendant. It is also important to maintain public confidence in the administration of the criminal justice system of the country. I do not believe that practices of this sort create that climate of confidence. Nor do they do so in the police service, whose interests should also not be totally ignored in considerations of this sort.
  On Question, Motion agreed to.
  [Amendment No. 53A not moved.]

  COMMONS AMENDMENTS
  54 After Clause 36, insert the following new clause:
  Cases where magistrates' court may remit offender to another such court for sentence
  ".—(l) Where a person who has attained the age of seventeen ('the offender') has been convicted by a magistrates' court ('the convicting court') of an offence to which this section applies (' the instant offence ') and—

  (a) it appears to the convicting court that some other magistrates' court (the other court) has convicted him of another such offence in respect of which the other court has neither passed sentence on him nor committed him to the Crown Court for sentence nor dealt with him in any other way; and

  (b) the other court consents to his being remitted under this section to the other court,

  the convicting court may remit him to the other court to be dealt with in respect of the instant offence by the other court instead of by the convicting court.
  (2) The offender, if remitted under this section, shall have no right of appeal against the order of remission.
  (3) Where the convicting court remits the offender to the other court under this section, it shall adjourn the trial of the information charging him with the instant offence, and—
  (a) section 105 of the Magistrates' Courts Act 1952 (remand in custody or on bail) and all other enactments (whenever passed) relating to remand or the granting of bail in criminal proceedings shall have effect in relation to the convicting court's power or duty to remand the offender on that adjournment as if any reference to the court to or before which the person remanded is to be brought or appear after remand were a reference to the court to which he is being remitted; and (b) subject to subsection (4) below, the other court may deal with the case in any way in which it would have power to deal with it (including, where applicable, the remission of the offender under this section to another
  466
  magistrates' court in respect of the instant offence) if all proceedings relating to that offence which took place before the convicting court had taken place before the other court.
  (4) Nothing in this section shall preclude the convicting court from making any order which it has power to make under section 28 of the Theft Act 1968 (orders for restitution) by virtue of the offenders' conviction of the instant offence.
  (5) Where the convicting court has remitted the offender under this section to the other court, the other court may remit him back to the convicting court; and the provisions of subsection (3) above (so far as applicable) shall apply with the necessary modifications in relation to any remission under this subsection.
  (6) This section applies to—

  (a) any offence punishable with imprisonment; and

  (b) any offence in respect of which the convicting court has a power or duty to order the offender to be disqualified under section 93 of the Road Traffic Act 1972 (disqualification for certain motoring offences);

  and in this section 'conviction' includes a finding under section 26(1) of the Magistrates' Courts Act 1952 (remand for medical examination) that the person in question did the act or made the omission charged, and 'convicted' shall be construed accordingly."
  55 Clause 37, page 28, line 18, after "him" insert "(being an offence of which he has been convicted by that or any other court)".
  4.44 p.m.
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 54 and 55 which, if it is for the convenience of the House, I should propose to take en bloc. Your Lordships will recall that, during the Committee stage in this House, we discussed an Amendment, inspired by the Magistrates' Association and moved by the noble Earl, Lord Mansfield, with the general object of concentrating in the hands of one court the task of sentencing a person convicted of offences by different magistrates' courts. The Government accepted the principle behind the Amendment and undertook to examine the proposal in detail with a view to bringing forward its own Amendment, and this Amendment is the outcome of our deliberations.
  Although it appears at first sight to be somewhat complex, this is mainly because of the need to adapt certain procedural matters. Essentially, the clause enables a magistrates' court, after

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  convicting a person of an offence which carries imprisonment or disqualification from driving, to transfer the case to another magistrates' court for sentence, if that other court has already convicted the person in question of such an offence but has not yet sentenced him. The proposal is designed to avoid separate—perhaps incompatible—sentences being imposed on a person within a short space of time by different courts. I think that this meets the point put to us by the noble Earl, Lord Mansfield, and I am very grateful to him for having put it to us.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  56 After Clause 37, insert the following new clause:
  Prison sentence partly served and partly suspended
  ".—(1) Where a court passes on an adult a sentence of imprisonment for a term of not less than six months and not more than two years, it may order that, after he has served part of the sentence in prison, the remainder of it shall be held in suspense.
  (2) The part to be held in suspense shall be not more than three quarters and not less than one quarter of the whole term, and the offender shall not be required to serve that part unless it is restored under subsection (3) below; and this shall be explained to him by the court, using ordinary language and stating the substantial effect of that subsection.
  (3) If at any time after the making of the order he is convicted of an offence punishable with imprisonment and committed during the whole period of the original sentence, then (subject to subsection (4) below) a court which is competent under this subsection may restore the part of the sentence held in suspense and order him to serve it.
  (4) If a court, considering the offender's case with a view to exercising the powers of subsection (3) above, is of opinion that (in view of all the circumstances, including the facts of the subsequent offence) it would be unjust fully to restore the part of the sentence held in suspense, it shall either restore a lesser part or declare, with reasons given, its decision to make no order under the subsection.
  (5) Where a court exercises those powers, it may direct that the restored part of the original sentence is to take effect as a term to be served either immediately or on the expiration of another term of imprisonment passed on the offender by that or another court.
  (6) 'Adult' in this section means a person who has attained the age of twenty-one;
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  and 'the whole period' of a sentence is the time which the offender would have had to serve in prison if the sentence had been passed without an order under subsection (1) above and he had no remission under section 25(1) of the Prison Act 1952 (industry and good conduct in prison).
  (7) Schedule (Matters ancillary to section (Prison sentence partly served and partly suspended)) to this Act has effectwith respect to procedural, sentencing and miscellaneous matters ancillary to those dealt with above in this section, including in particular the courts which are competent under subsection (3) above.
  (8) This section and paragraphs 1 to 6 of Schedule (Matters ancillary to section (Prison sentence partly served and partly suspended)) to this Act and the Powers of Criminal Courts Act 1973 shall be construed and have effect as if this section and those paragraphs of the Schedule were contained in that Act.".
  4.48 p.m.
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 56. I should like to speak at the same time to Amendment No. 95 and to the related new Schedule which is Amendment No. 122. The new clause and the related Schedule introduce a new form of sentence of which part should be served in custody and part held in suspense, to be activated if the offender is convicted of an imprisonable offence committed during the period of sentence. Courts already have the power, in relation to prison sentences of up to and including two years, to order that the sentence shall not take effect unless the offender is convicted of a fresh imprisonable offence. In that event, the original sentence must be activated in full unless the court decides that it would be unjust to do so—in which case it may impose a lesser term or make no order. There is at present no power to suspend part of a sentence, and that, of course, is what we now have before us.
  The new sentence differs from full suspension in several significant aspects. To start with, the offender serves the first portion of his sentence in prison, whereas a defendant made subject to a fully suspended sentence will not, unless he reoffends, go to prison at all. Secondly, partial suspension is only available for those over 21 years of age. Young prisoners under 21 are released from prison on licence, under the terms of which they may, of course, be returned to prison if they misbehave. It would not be right for

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  a young prisoner to be subject on release from prison to the requirements of a young prisoner licence and also to the liability to activation of the suspended portion of a partially suspended sentence. A young prisoner licence is, from some points of view, very close indeed to partial suspension.
  Thirdly, the sentence may be suspended only for its nominal length and not, as in the case of full suspension, for longer. Finally, there is now power for courts to make a supervision order on the suspended portion of the sentence. Partial suspension is different from full suspension; the experience of prison gives the offender an extra incentive not to commit another offence during the suspended portion. If courts see the need for supervision as paramount in a particular case, then I hope that they will continue to use their present powers of full suspension.
  Partial suspension will not apply to sentences of more than two years—the present limit for full suspension—so as not to overlap with the requirements of the parole system. The minimum sentence is six months, which means that the shortest period which may be ordered to be spent in custody is six weeks. A period shorter than that would, in our judgment, present a number of practical difficulties. Both the maximum period which could be suspended and the minimum to be spent in custody on a sentence of less than six months would really be too short to be worthwhile. By making a sentence of six months available, the new order is within the range of sentences which may be used by magistrates' courts.
  The new sentence will, in our judgment, enlarge the scope of the sentencing power of courts. It should provide a salutary check to a number of offenders who will not only see how disagreable deprivation of liberty can in fact be but will also be given an extra incentive to keep out of trouble. I have taken rather more of the time of the House on this particular Amendment than on others, because I think that it will generally be agreed that this is an important matter which deserves the attention of the House. I beg to move.
  Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)
  4.52 p.m.
  Baroness WOOTTON of ABINGER: My Lords, far be it from me to throw a spanner in the works on an Amendment which my noble friend is prepared to accept, but I do think that we ought to realise that we are getting into an extremely complicated situation. If we accept this Amendment, there will be three different sets of circumstances in which persons can be released from prison before the end of their nominal sentence. First, there is the normal one-third remission. In each of these three sets of circumstances, they will come out under different controls or no control. If they come out after their ordinary remission, they will be free men, as free as anybody here or outside this House who has never been convicted of anything. If they come out on parole, they will be on licence, and will be liable to be recalled, so long as their nominal sentence lasts, if they break the conditions of their parole. If they come out on this partially suspended sentence then they will be liable, if they should commit another offence, for so long as the suspended period continues, to serve the remainder of the sentence that has been suspended, plus anything they may be given for the subsequent offence.
  So we have three sets of circumstances and three kinds of possible release. I think we shall all, both those on the Bench and those in the dock, need to take to court our little calculators and computers. I do see that this has been carefully designed so that there should not be an overlap with parole in the sense that the same person may be eligible both for parole and for a partial suspension, but do we really need a totally new sentence for this? That, I think, is arguable.
  What may also be important is not just the complications but the fact that this will be a temptation, particularly as it is available to magistrates' courts. The words "over six months" would have put a different complexion on it and would have confined it to the Crown Court, but the words used are,
  "not less than six months and not more than two years."
  The "not less than six months" brings it into the purview of the magistrates' courts. In magistrates' courts, sentences are decided by the common view of several

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  magistrates, usually three. One magistrate may say, "I think this chap ought to go inside for three months". Another magistrate may say, "No, I think he ought to have a suspended sentence for six months". After a certain amount of discussion, the third magistrate, probably the chairman, will say, "Let us have a compromise; let us give him six months and suspend half of it", or, "Let us give him a four months sentence and suspend two months of it." This is a temptation which may lead courts to put into prison for very short terms with a suspended period afterwards, a lot of people who would never have gone to prison before. The one thing we do not want to do, surely—even if we think a taste of prison may have a salutary effect—is to clutter up the prisons with a lot of "ins and outs" with very short sentences, which will add enormously to the prison burdens.
  If we really want to release people after a shorter period than at present provided by parole, which is either after one year or a third of the sentence, whichever is the longer, a simpler means to the same effect would be to alter the conditions of parole. We are now inventing a new variety of suspension in order to cover what must be a very small number of people—those who are not eligible for parole because their sentences are not long enough, and those for whom we do not feel able to fix a term which would be satisfactory for them to spend inside. I do not want to resist this Amendment, but I do want to point out that it creates certain risks and immense complications.
  Lord WIGODER: My Lords, I welcome this new clause because it is a further weapon in a range, which should be as extensive as possible, in the hands of the Judiciary in passing sentence. At the same time, I am bound to echo the fears expressed by the noble Baroness. I can quite see that there will be cases in which a court may feel that the appropriate sentence is one of, let us say, two years' imprisonment, but that it is not necessary that the defendant should serve the whole of the sentence, although it is not possible to suspend the whole of the sentence.
  Baroness WOOTTON of ABINGER: My Lords, if I may intervene, why is the two years necessary if it is not necessary
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  to serve it? Why do we have to say two years when we mean half that period?
  Lord WIGODER: My Lords, I accept that. I am only seeking to point out that I can see that there are certain circumstances in which this clause might be used, and as a result a person might go to prison for a shorter period of time than he otherwise would; so to that extent the clause will serve its purpose. But I have a very real anxiety that the opposite situation may also arise. It very frequently happens that a Crown Court judge is faced with a situation in which he feels that the appropriate sentence is one of 18 months or two years, and he is genuinely undecided as to whether that sentence should be suspended or not. As the law stands at present, I think more often than not the judge who is anxious to be lenient would suspend the sentence and the man would not go to prison.
  I think there is a very real danger that under this clause a compromise would be reached, by the judge deciding that he would still pass the sentence and suspend a certain part of it. I would suggest to the noble Lord, Lord Harris, that the most careful scrutiny will have to be given during the next year or two to the way in which this clause operates, to ensure that it is serving its purpose and not leading to more rather than fewer people being put into prison.
  The other matter I would raise is this. Is it really necessary, where a part of a sentence is ordered to be served, that it has to be as much as a quarter of the whole term? I raise that question for this reason. There is a very substantial and growing school of thought which believes that the effective part of a prison sentence, at least upon a person of good character, is what is sometimes referred to as the "door clanging behind him syndrome". It is the first few days of realising that he is in a situation in which he has lost his liberty and contact with his family and friends and is finding life extremely unpleasant.
  There is much to be said for the view that a short sentence, actually served, of perhaps two, three or four weeks, might be more than sufficient to ensure that a first offender in those circumstances is extremely unlikely to offend again. Therefore I wonder whether, at least in due course, though obviously not at this stage, when one sees how this provision is

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  working, it may be possible to consider combining it with a situation in which very short immediate custodial sentences might be passed as part of a long-term suspended sentence.
  The Earl of MANSFIELD: My Lords, I too welcome the new Clause, and for similar reasons to those given by the noble Lord, Lord Wigoder. It provides a new part of a judge's or bench's armoury which I think, especially in the case of a short, sharp sentence, will be very welcome. I see the noble and learned Lord, Lord McCluskey, in his place, and I hope it is not an abuse of the procedures of the House to say—and I say this in my capacity as president of the Scottish Association for the Care and Resettlement of Offenders—that I hope he is following what is going on (I do not say that rudely) and that he will talk to the Lord Advocate about it. If the present Government are in power next Session—and of course I hope they are not—and we do not have a very full legislative timetable, I hope that something of the same nature might be considered for Scotland, where as yet we do not even have suspended sentences.
  Baroness MACLEOD of BORVE: My Lords, I welcome the new clause and think it will help magistrates. However, I am wondering why an adult has to be 21 because, as we know, the rate of crime from 17 to 21 is escalating, as it is in the juvenile courts. I think it would be more helpful if this provision could apply directly the juvenile becomes an adult. I agree with the noble Baroness that unless something further is laid down for magistrates it is quite likely that more use will be made of sending some people to prison whereas now suspended sentences are given, and that would in some cases be defeating the object of the Bill. With the proviso of hoping that the age limit may be reduced to 17, I welcome the new clause.
  5.4 p.m.
  Lord HARRIS of GREENWICH: My Lords, I am grateful to all noble Lords who have spoken. I do not find myself in a great deal of disagreement with the noble Lord, Lord Wigoder, or indeed with my noble friend Lady Wootton. This is a difficult matter and it would be foolish to make any firm predictions about what the courts will do with this
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  power. Our view—and certainly we should not have favoured the Amendment had we not come to this view—is that it will, on balance, lead to a reduction rather than an increase in the size of the prison population. However, this is a matter in which it is perfectly possible to have two views and we will certainly study the matter with the greatest care. As my noble friend Lady Wootton said, it is indeed a complicated matter. There is, as she rightly said the, question of one-third remission; but of course the one-third remission will apply to this sentence as well, as it does to parole cases too, and now there will be the partially suspended sentence.
  The noble Baroness, Lady Macleod of Borve, raised the question of the under 21s. The point here is that an under 21 offender who comes out of prison, comes out on the basis of a YP licence and, as I said earlier, it is not in our view appropriate to have both a partially suspended sentence and a YP licence affecting the same people. It would be incredibly complicated and in my view would lead to an unsatisfactory situation; therefore, we have taken the view that it should be 21 and over.
  As for the point made by the noble Lord, Lord Wigoder, on the 25 per cent. figure, again the position is the very difficult one of balance. What would be the effect of following the noble Lord's advice? Our view is that, on balance, it would lead to a possible increase in the size of the prison population. I accept that it is perfectly possible to take a different view. Nevertheless, on balance we have come to the conclusion that this provision is desirable in order to ensure that the whole thing does not get out of hand. Again, my thanks to noble Lords who have participated in this short and interesting debate, and I can certainly undertake that we shall keep the closest watch on how this new sentence works out.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  57 Clause 38, page 28, line 37, leave out "an offence triable either way" and insert "a prescribed offence or an offence of any prescribed class"
  58 Page 29, line 13, leave out "and"
  59 Page 29, line 13, line 17, at end insert and (c) may make different provision with

  475
  respect to different offences or offences of different classes."
  60 Page 29, line 13, line 18, leave out from beginning to second "to" in line 20 and insert "It shall not be open to a person convicted of an offence".
  5.6 p.m.
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 57 to 60 en bloc. This group of Amendments relates to a matter which has attracted debate at every stage in your Lordships' House, though on this occasion I do not think we need spend long on it. The Amendments to Clause 38, which contains the power to make rules providing for advance disclosure of the prosecution case—the noble Lord, Lord Wigoder, and I devoted a great deal of attention to this, as did many others—are Amendments which I think the noble Lord will have had the opportunity to study; they make rather more sense of the provision and make the drafting a great deal more satisfactory.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Harris of Greenwich.)
  Lord WIGODER: My Lords, I very much welcome this as a substantial step forward and I am grateful to the Government for their co-operative attitude in the matter. If it is within our rules of order, perhaps I might raise a small matter. Even after the Amendment was carried in Standing Committee in the other place, when the Bill was reprinted it still contained in the side note and in the table of contents at the beginning the words:
  "Power to make rules for offences triable either way".
  That is now a wholly misleading description and I hope that in due course that will be rectified before the Bill is finally printed.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  61 After Clause 38, insert the following new clause:
  Power to order search of person before Crown Court
  After section 34 of the Powers of Criminal Courts Act 1973 there shall be inserted—
  34A.—(1) Where—

  (a) the Crown Court imposes a fine on a person or forfeits his recognizance;

  (b) the Crown Court makes against a person any such order as is metioned
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  in paragraph 3, 4 or 9 of Schedule 9 to the Administration of Justice Act 1970 (orders for the payment of costs);

  (c) the Crown Court makes against a person any such order as is mentioned in paragraph 12 of that Schedule (fines etc. payable by parents or guardians) other than an order under section 35 of this Act; or

  (d) on the determination of an appeal brought by a person under section 83 of the Magistrates' Courts Act 1952 a sum is payable by him, whether by virtue of an order of the Crown Court or by virtue of a conviction or order of the magistrates' court against whose decision the appeal was brought,

  then, if that person is before it, the Crown Court may order him to be searched.
  (2) Any money found on a person in a search under this section may be applied, unless the court otherwise directs, towards payment of the fine or other sum payable by him; and the balance, if any, shall be returned to him".'.
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 61. This Amendment has been brought forward in the hope that it will improve the enforcement of sums ordered at the Crown Court and, at the same time, will afford some small relief to magistrates' courts, which are responsible for enforcing Crown Court orders. The I clause gives the Crown Court power to order a person who is before it and who, broadly speaking, has been ordered to pay a sum of money by way of fine, costs, forfeited recognizance or certain other sums to be searched while he is at court and any money found on him to be applied, at the discretion of the court, towards payment of the sum. Such a power is already available to magistrates' courts and is found to be useful in circumstances where courts have reason to think that the defendant has the means on him to pay his fine.
  Moved, That this House doth agree with the Commons in the said Amendment. — (Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  62 After Clause 39, insert the following new clause:
  Bomb hoaxes.
  ".—(1) A person who—

  (a) places any article in any place whatever; or

  477

  (b) dispatches any article by post, rail or any other means whatever of sending things from one place to another,

  with the intention (in either case) of inducing in some other person a belief that it is likely to explode or ignite and thereby cause personal injury or damage to property is guilty of an offence.
  In this subsection article' includes substance.
  (2) A person who communicates any information which he knows or believes to be false to another person with the intention of inducing in him or any other person a false belief that a bomb or other thing liable to explode or ignite is present in any place or location whatever is guilty of an offence.
  (3) For a person to be guilty of an offence under subsection (1) or (2) above it is not necessary for him to have any particular person in mind as the person in whom he intends to induce the belief mentioned in that subsection.
  (4) A person who maliciously threatens otherwise than by letter or writing to kill or murder any person is guilty of an offence.
  (5) A person guilty of an offence under this section shall be liable—

  (a) on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding £1,000, or both;

  (b) on conviction on indictment, to imprisonment for a term not exceeding five years."

  AMENDMENTS MOVED IN LIEU THEREOF
  62A After Clause 39, insert the following new clause:—
  Bomb hoaxes.
  (" . — (1) A person who—

  (a) places any article in any place whatever: or

  (b) dispatches any article by post, rail or any other means whatever of sending things from one place to another,

  with the intention (in either case) of inducing in some other person a belief that it is likely to explode or ignite and thereby cause personal injury or damage to property is guilty of an offence.
  In this subsection "article" includes substance.
  (2) A person who communicates any information which he knows or believes to be false to another person with the intention of inducing in him or any other person a false belief that a bomb or other thing liable to explode or ignite is present in any place or location whatever is guilty of an offence.
  (3) For a person to be guilty of an offence under subsection (1) or (2) above it is not necessary for him to have any particular person in mind as the person in whom he intends to induce the belief mentioned in that subsection.
  (4) A person guilty of an offence under this section shall be liable—

  (a) on summary conviction, to imprisonment for a term not exceeding three
  478
  months or to a fine not exceeding £1,000, or both;

  (b) on conviction on indictment, to imprisonment for a term not exceeding five years.")

  62B Page 47, line 15, leave out ("sending letters threatening to murder ") and insert (" threats to kill ")
  62C Page 49, line 20, leave out (" sending letters threatening to murder ") and insert (" threats to kill ")
  62D Page 75, line 40, at end insert—
  ("OFFENCES AGAINST THE PERSON ACT 1861 (c. 100)
  For section 16 (sending letters threatening to murder) substitute—
  "Threats to kill
  16. A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out, to kill that other or a third person shall be guilty of an offence and liable on conviction on indictment to imprisonment for a term not exceeding ten years.".")
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth disagree with the Commons in their Amendment No. 62 but propose Amendments, Nos. 62A, 62B, 62C, and 62D in lieu thereof. It may assist the House if I begin by explaining that there are two matters which have become entangled here. The first is the provision on bomb hoaxes, which was introduced by the Government in another place. The second is the provision on threat to kill or murder which was added later but which now appears as subsection (4) of the new clause proposed by Amendment No. 62. The effect of the Amendments which I am now moving is to separate the two provisions, leaving one new clause dealing solely with bomb hoaxes and then dealing elsewhere in the Bill with threats to kill.
  The first Amendment which I am moving provides new offences to deal with bomb hoaxes, and was, as I have explained, incorporated into the Bill during its Committee stage in another place. The new offences reflect the careful consideration given to these matters by the Law Commission, and also, indeed, the views of senior police officers. They are intended as a measure to counter the practical problems faced by the police in dealing with bomb hoaxes, and not as a comprehensive reform of the law. The provisions which can be used against bomb hoaxes at present are, frankly, inadequate, in that they do not apply to all possible hoaxes; and it is difficult to

  479
  fit some hoaxes into the existing range of offences at all. Moreover, the penalties for the most widely applicable offence are too small, and would not be raised without a disproportionate and distorting effect on other penalties. The new clause should rectify these failings. In brief, it would make it an offence to place or to send a hoax bomb, or to give a false warning of a hoax bomb. In both cases, a full element of intent is included, and there is nothing in this Amendment that will discourage those who genuinely wish to give information and to help the police.
  I think the present defect in the law is, frankly, a serious one. Bomb hoaxes can cause a great waste of police time, often when the police are already stretched dealing with genuine bomb attacks. The Metropolitan Police have left me in no doubt about the serious problems the hoax bomber can cause, including great inconvenience to the public, or even danger. I think the Amendment will serve, both to clarify the law and, indeed, to help the police in a practical way.
  Just to give an illustration of the scale of this problem, I am told that in 1976 the Metropolitan Police alone received an average of 10 false calls a day saying that there was a bomb on the premises, or something of that sort, and this number rose to 100 a day during the period of the bomb attacks. This gives an indication of the scale of this problem in the capital city of this country alone, and I think it is generally recognised to be a serious one. For the reasons I have indicated, I think it is desirable to deal with this matter adequately, and this new clause achieves that objective.
  The other Amendments which I am moving relate to the offence of threatening to kill or murder, covered by subsection (4) of Commons Amendment No. 62. During discussion of the bomb hoax provisions in Committee in another place, it was pointed out that the existing offence in Section 16 of the Offences against the Person Act 1861 is limited to written threats; thus, persons making spoken threats, for example over the telephone, cannot be dealt with under that section. That, indeed, is why we have put this Amendment before the House, and I beg to move.
  Moved, That this House doth disagree with the Commons in the said Amendment
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  but propose Amendments Nos. 62A to 62D in lieu thereof.—(Lord Harris of Greenwich.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  63 Insert the following new clause:
  Misuse of Drugs Act 1971: redefinition of cannabis.
  In section 37(1) (interpretation) of the Misuse of Drugs Act 1971, for the definition of 'cannabis' there shall be substituted—
  '"cannabis" (except in the expression "cannabis resin") means any plant of the genus Cannabis or any part of any such plant (by whatever name designated) except that it does not include cannabis resin or any of the following products after separation from the rest of the plant, namely—

  (a) mature stalk of any such plant,

  (b) fibre produced from mature stalk of any such plant, and

  (c) seed of any such plant; '."

  5.13 p.m.
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 63. This new clause amends the definition of "cannabis" as at present set out in Section 37(1) of the Misuse of Drugs Act 1971. The background of this situation is as follows. In a recent case the Court of Appeal first decided that the leaves of the plant did not fall within the existing definition, which defines cannabis as the flowering and fruiting tops of the plant. The scientific evidence, however, shows that the leaves are quite capable of producing an intoxicating effect very nearly as great as the flowering and fruiting tops. Indeed, it was on the strength of the psycho-active content of the leaves that, in the same case to which I have just referred, the defendant, having been found not guilty by the Court of Appeal in relation to the charge of possessing cannabis, was subsequently found guilty in relation to a charge of possessing cannabinol derivatives on the strength of precisely the same material, and the Court of Appeal upheld that conviction in a judgment delivered the day after this Amendment was added to the Bill in another place. Cannabinol derivatives, however, are a Class A substance, the penalties for which under the Misuse of Drugs Act 1971 are greater than in respect of cannabis itself.

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  It is clear that the two decisions of the Court of Appeal have left the law in a profoundly unsatisfactory condition, with the leaves of the plant treated as a Class A drug, in the same category, for example, as heroin, which is manifestly unjust and contrary to the intention of Parliament. The Government have accordingly decided to take the opportunity this Bill has provided to redefine "cannabis". In doing so, we are supported by the Advisory Council on the Misuse of Drugs, which has recommended the Home Secretary to take this course in the letter from the chairman which my right honourable friend has already published. I beg to move.
  Moved, That this House doth agree with the Commons in the said Amendment. —(Lord Harris of Greenwich.)
  Baroness WOOTTON of ABINGER: My Lords, I should like to ask my noble friend one question. In thus altering the definition of "cannabis", are we making it rather more comprehensive than that of the international convention to which we are a signatory?
  Lord HARRIS of GREENWICH: No, my Lords. I think that the redefinition has been found necessary solely as a result of these particular cases which came before the Court of Appeal. It does not Change the substance of the law in any way; it simply achieves some clarification of it.
  Baroness WOOTTON of ABINGER: My Lords, my noble friend has not answered my question. Is our definition now exactly the same as the definition of the international convention to which we are a signatory, or is it different?
  Lord HARRIS of GREENWICH: My Lords, so far as I am aware, the answer is, certainly, yes.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  64 Insert the following new clause:
  Amendments of Obscene Publications Act 1959 with respect to cinematograph exhibitions.
  ".—(1) In the proviso to section 1(3) of the Obscene Publications Act 1959 (which excludes from the scope of that Act anything done in the course of a cinematograph exhibition taking place
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  otherwise than in a private house to which the public are not admitted and anything done in the course of television or sound broadcasting) the words from 'a cinematograph exhibition' to in the course of ' shall be omitted.
  (2) In section 2 of that Act (prohibition of publication of obscene matter) at the end of subsection (3) there shall be inserted the following subsection:—
  (3A) Proceedings for an offence under this section shall not be instituted except by or with the consent of the Director of Public Prosecutions in any case where the relevant publication or the only other publication which followed or could reasonably have been expected to follow from the relevant publication took place or (as the case may be) was to take place in the course of a cinematograph exhibition; and in this subsection "the relevant publication" means—

  (a) in the case of any proceedings under this section for publishing an obscene article, the publication in respect of which the defendant would be charged if the proceedings were brought; and

  (b) in the case of any proceedings under this section for having an obscene article for publication for gain, the publication which, if the proceedings were brought, the defendant would be alleged to have had in contemplation.'

  (3) In section 2 of that Act after subsection (4) there shall be inserted the following subsection: —
  (4A) Without prejudice to subsection (4) above, a person shall not be proceeded against for an offence at common law—

  (a) in respect of a cinematograph exhibition or anything said or done in the course of a cinematograph exhibition, where it is of the essence of the common law offence that the exhibition or, as the case may be, what was said or done was obscene, indecent, offensive, disgusting or injurious to morality; or

  (b) in respect of an agreement to give a cinematograph exhibition or to cause anything to be said or done in the course of such an exhibition where the common law offence consists of conspiring to corrupt public morals or to do any act contrary to public morals or decency.'

  (4) At the end of section 2 of that Act there shall be added the following subsection—
  (7) In this section "cinematograph exhibition" means an exhibition of moving pictures produced on a screen by means which include the projection of light.'
  (5) In section 3 of that Act (which among other things makes provision for the forfeiture of obscene articles kept for publication for gain) at the beginning of subsection (3) there shall be inserted the words "Subject to subsection (3A) of this

  483
  section" and at the end of that subsection there shall be inserted the following sub-section:—
  (3A) Without prejudice to the duty of a court to make an order for the forfeiture of an article where section 1(4) of the Obscene Publications Act 1964 applies (orders made on conviction), in a case where by virtue of subsection (3A) of section 2 of this Act proceedings under the said section 2 for having an article for publication for gain could not be instituted except by or with the consent of the Director of Public Prosecutions, no order for the forfeiture of the article shall be made under this section unless the warrant under which the article was seized was issued on an information laid by or on behalf of the Director of Public Prosecutions.'
  (6) In section 4 of that Act (defence of public good) at the beginning of subsection (1) there shall be inserted the words ' Subject to subsection (1A) of this section' and at the end of that subsection there shall be inserted the following subsection:—
  (1A) Subsection (1) of this section shall not apply where the article in question is a moving picture film or soundtrack, but—

  (a) a person shall not be convicted of an offence against section 2 of this Act in relation to any such film or soundtrack, and

  (b) an order for forfeiture of any such film or soundtrack shall not be made under section 3 of this Act,

  if it is proved that publication of the film or soundtrack is justified as being for the public good on the ground that it is in the interests of drama, opera, ballet or any other art, or of literature or learning.'
  (7) At the end of section 4 of that Act there shall be added the following subsection: —
  (3) In this section "moving picture soundtrack" means any sound record designed for playing with a moving picture film, whether incorporated with the film or not.' "
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 64, and with the leave of the House I should like to speak at the same time to Amendments Nos. 64A and 167. The new clause results from a widespread feeling which has become evident during the proceedings on the Bill, particularly as embodied in Amendments moved by Opposition spokesmen in the Committee in another place, that the law on films was currently so unsatisfactory as to require an interim solution pending the conclusions of the committee which my right honourable friend the Home Secretary has appointed,
  484
  under the chairmanship of Professor Bernard Williams, to undertake a fundamental review of the laws in the general field of obscenity. The Government responded to this pressure by introducing a new clause which deals with films along the lines recommended by the Law Commission in its report on the law of conspiracy, but which leaves the wider changes proposed by the Commission to be looked at in the context of the review by the new committee. It remains the Government's view, as I explained in your Lordships' House during earlier stages of the Bill, that it is desirable not to seek changes in the basis of the present law while it is being examined by a departmental committee, but in the limited respect set out in this new clause we have agreed that, as a kind of holding operation, concern about the state of the present law might for now be met by placing films on the same legal footing as books and plays.
  The new clause follows broadly the Law Commission's proposed form for making films subject to the Obscene Publications Acts, but instead of abolishing the common law offences entirely it provides in subsection (3), in a provision similar to that in the Theatres Act 1968, that proceedings at common law shall not lie against a cinematograph exhibition. The common law offences will, pending the review of the Departmental Committee, be preserved for other forms of activity not at present covered by the Statutes, but films will be subject only to proceedings for the statutory offences of obscenity. This will mean that cinema clubs, as well as cinemas, will be brought within the obscenity laws.
  The new clause contains two particular modifications of the Obscene Publications Acts in applying them to film exhibitions, both of them recommended by the Law Commission. In subsections (2) and (5) there are provisions designed to forestall frivolous or vexatious proceedings against films by requiring the consent of the Diretor of Public Prosecutions to prosecutions. There is a small departure in subsection (2) from the clause drafted by the Law Commission, in that the Commission had wished to give the protection of the Director's consent only to licensed cinemas and film societies, leaving private prosecutors free to institute proceedings against cinema clubs.

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  The test adopted by the Law Commission in attempting to distinguish film societies—of whether or not a body was an "exempted organisation" under the provisions of the Cinematograph Act 1952—was found not to work in practice. The Government concluded that it would be better to adopt the simple course of requiring the Director's consent generally, but, as a result of concern about the effect the clause as drafted might unwittingly have in relation to the trade in obscene home movies, Amendment No. 64A has been tabled to limit the application of subsections (2) and (5). This will require the Director's consent in relation to 35 mm. and 16 mm. films—which will effectively protect cinemas and film societies in the way proposed by the Law Commission—but will not provide such a requirement in respect of 8 mm. films, which are those more likely to be distributed as pornography. In consequence of this limitation, the Director of Public Prosecutions will not need to give his consent in cases involving the wholesalers or retailers of obscene 8 mm. films, nor need the police be inhibited, when executing a warrant issued other than on the Director's application, from seizing such films as they might find along with other pornographic material. It will however continue to be a requirement of the Prosecution of Offences Regulations that the police should consult the Director of Public Prosecutions about all proceedings in obscene publications cases. I beg to move.
  Moved, That this House cloth agree with the Commons in the said Amendment. —(Lord Harris of Greenwich.)
  The LORD CHANCELLOR (Lord Elwyn-Jones): My Lords, Amendment No. 64A is proposed as an Amendment to Commons Amendment No. 64.

  AMENDMENT TO COMMONS AMENDMENT No. 64
  64A Line 13, after (" where ") insert (" the article in question is a moving picture film of a width of not less than sixteen millimetres and ").
  5.22 p.m.
  Lord BEAUMONT of WHITLEY: My Lords, I would congratulate the Government on putting together a very useful, temporary solution to this problem. It is
  486
  not a permanent solution and some of the objections to it can be seen from this Amendment as it is: for instance, the exclusion of 8mm film. I see why the Government have clone it. It seems to me a rather ingenious way of meeting the problem. But there is really no logic or justification for this division. Super Eight films are now used quite a lot as a serious art form, and in film societies—not in cinemas—by people who are studying the film as an art. It would be a pity that, if this kind of law applied for any length of time, there should be this division and that perfectly serious film societies producing Super Eight films for production might find themselves victims of this loophole in the law from the kind of frivolous products which have been spoken of. Therefore, it is limited support that I want to give to this Amendment. I think it is very useful and I am delighted that the Government have gone this way. It is no substitute for what we hope to see happen after the report of the Williams Committee, which we hope will be as soon as possible.
  The Lord Bishop of LEICESTER: My Lords, I am sorry to delay the House and the Minister when he is having something so much similar to a clear round, but am going to ask the House to disagree both with him and with the Commons in this particular Amendment. I must admit that when I saw the headline in the Press that cinemas were to be brought under the law of obscenity I was temporarily pleased because this is what some of us argued for at the time of the discussions on the Longford committee on pornography. But the more one looks into it, the more doubtful one becomes about whether what is proposed is really going to be helpful or the reverse.
  To begin with, as has been said, the proposal is to bring cinematograph displays under the Obscene Publications Act 1959. Many noble and learned Lords and other high legal luminaries have admitted the extremely unsatisfactory nature of that Act; and that is one of the reasons why the Special Departmental Committee is sitting at this moment on the whole question of the law of obscenity.
  The weakness of the present Act hardly needs to be emphasised but it all turns on the phrase that the material "must tend

  487
  to deprave or corrupt". This leaves a way out at both ends. You can always say that the people likely to see it are already so depraved and corrupted that it is impossible to do them any more harm; or, alternatively, that they are so mature and integrated that nothing could befoul them on the principle of purrs omnia pura. But it is proved that this is just about the most unsatisfactory way of giving a jury anything clear to settle when they get these cases brought before them.
  There are other objections. The rights of the citizen under common law are very much restricted. They were so, to some extent, under the Obscene Publications Act 1959 because there, although it was an Act to deal with obscene publications, it was specifically stated that there was to be no prosecution under the common law if the principle thing objected to in the article under consideration was its obscenity. But the present Amendment has done a good deal further than that. It has said now that it is not only the question of obscenity that shall make an action under common law impossible, but that it is also forbidden if the material is said to be
  " obscene, indecent, offensive, disgusting or injurious to morality …".
  Anyone looking at this casually would immediately think that these are the bad things, but these are the things which are to extract the cinemas from any action under common law. So there is a whole range of material there for serious discussion. The whole matter is brought again under the personal control of the Director of Public Prosecutions, and one can see here again that there is a very considerable limitation put upon the likelihood of any effective action being taken because the Director of Public Prosecutions himself is in an embarrassing position. He has to deal, to some extent, with the Board of Film Censors. It would be extremely embarrassing for him to have to bring a case against something that had escaped the eye of that particular Board.
  On the whole, I, and I think some other Members of this House, feel that it would be better not to bring in this wholly new clause at this late stage in the consideration of the Bill but to wait until the departmental committee has produced
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  its report on the law of obscenity and, if there are cases urgently needing attention in the meanwhile, to hope that they can be dealt with under what is still left of the common law provisions.
  I would respectfully ask your Lordships to adhere to the decision you made on 1st March when a similar proposal was made in this House and rejected. I hope very much that we shall not agree with the Commons in this particular step.
  Lord ROBERTSON of OAKRIDGE: My Lords, I feel that this is an important Amendment and I should like to support the right reverend Prelate the Bishop of Leicester in what he said in opposing it. I do so for two reasons. First, I believe that it carries the distinct risk of increased indecency in films exhibited to the public. Secondly, it seems to me inopportune to make such a change just when a general review of the laws on obscenity is about to be made by a Home Office Committee.
  On the first point, I would draw your Lordships' attention to the fact that we would be replacing the clear, common law standards of what is or what is not an indecent public exhibition—and I understand that this is a standard which can easily he applied by a jury—by the requirements of a law of which the right reverend Prelate has already pointed out the defects. If any further evidence were required as to the limitations of the Obscene Publications Act, I believe that this evidence was given in remarks made by Mr. John Lindsay last week, who had just been cleared on three counts of possessing obscene articles for publication for gain. The Times quoted him as saying:
  " This makes pornographic films legal in this country at long last".
  It is therefore to be welcomed that the Home Secretary has set up the Williams Committee to review the laws concerning obscenity, indecency and violence in publications, displays and entertainments, and to review the arrangements for film censorship. But to make such a substantial change in the law as is now envisaged, with all the risks involved, just before this committee gets down to work would, in my view, be unwise and inopportune.
  Lord SUDELEY: My Lords, I should like to support the right reverend Prelate

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  in his remarks about the unsatisfactory statutory definition of obscenity as opposed to the common law. In everything that the legal luminaries have said, criticism of the 1959 Obscene Publications Act has been well borne out by the recent cases reported in the Press. The film trade journal entitled Screen International may have reported on 11th June that a fear of contravening not the statute law but the common law persuaded the British Board of Film Censors to make some cuts in a "soft porn" film called "Phantasm", from Australia. The producer of the film, who did not like the cuts, had to content himself with showing the film in film clubs for the time being. On the other hand, there is the case of Mr. John Lindsay to which the noble Lord, Lord Robertson of Oakridge, referred. There the test for obscenity under the statutory test of obscenity was applied and a jury at the Old Bailey overturned an attempt by the Director of Public Prosecutions to secure a conviction on three pornographic films. The three pornographic films showed lesbianism, intercourse and oral sex.
  5.34 p.m.
  The Lord Bishop of NORWICH: My Lords, I hope that the noble Lord will give full account to what has been said because this matter is something which cannot really be thought to be in the public good. The very description used on page 21, showing that we are thinking about films which could be considered, in whatever way they are looked at under common law or in this new system under the new Amendment, in any way related to being obscene, indecent, offensive, disgusting, or injurious to morality, shows that we are thinking not so ranch of what the noble Lord referred to as serious art forms, but this area. If so, then surely for the public good we ought not to go further down this rather slippery slope, which it is easy for us to go down, in the sacred name of what is called freedom. But whose freedom? Freedom to do what, and freedom for which people? I hope very much that we shall seek to continue what we are doing this evening, which is not to deny freedom for the public good, but to deny freedom for those who are seeking to spoil the public good.
  I listened carefully to the clear way in which the noble Lord, Lord Harris of
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  Greenwich, set out most of the other Amendments; nearly all of them have been designed—take the matter of the bomb hoax situation—to maintain the breadth of public freedom and only to contain the narrowness of freedom of those who will not do the country good, but harm. I take comfort from this because, so far as I can tell, this Amendment was not brought forward originally in another place as a piece of serious Government thinking, but I think it came through in other ways. Therefore, I hope that if a matter of this importance is pressed to a Division there will be no question of the Government asking their supporters to support this Amendment. Quoting from the noble Lord, Lord Donaldson of Kingsbridge, a week or two ago, when we were discussing a film so disgusting that a Member of this House had to refer to what happened in it in Latin (which unfortunately most of us were able to translate), means that we should have a free and conscience vote on this particular Amendment.
  Lord DONALDSON of KINGS-BRIDGE: My Lords, it so happens that I have spoken to somebody who has seen the film, and the "Latin event" did not occur in it.
  The Lord BISHOP of NORWICH: My Lords, I thank the noble Lord for that. I am sorry that I was able to translate what was meant to take place; but I am encouraged to hear that it did not. None the less, it sounded as though the nuances of the film might come in the broadest terms within page 21 in which we are considering these words
  This reinforces the point that I was seeking to make, that enough is enough and we ought not to weaken the rather gentle controls that are already put on this type of film, which we know produces a great deal of money for people who are in the film business not only for great and serious art forms but for the money. After those of us who are innocent about matters of law have heard of how difficult it is to get a jury to be ready to act and, following the rather terrifying revelations from the Opposition Front Bench about which the noble Earl, Lord Mansfield, told us about the jury system, we would be most unwise in common sense to pass this Amendment. I hope therefore that

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  all noble Lords of good will—which I gather all of us are—will in good sense object to this Amendment.
  Viscount DILHORNE: My Lords, there are two aspects which worry me. I am grateful to the right reverend Prelate the Bishop of Leicester for drawing my attention to these provisions, which I confess I had not studied at all closely. The first is the reference to the Obscene Publications Act. That definition to corrupt and deprave is of course taken from the case of Hickling which was a common law case. It has been the defect throughout that that definition was retained in that Obscene Publications Act. That has led to all the trouble. I do not think it is just confined to statutory law. Instead of letting the word "obscene" be given its ordinary, natural meaning, there has been a growing tendency in this country of seeking to define in strict language the meaning to be attached to ordinary English words.
  I am glad to hear that the whole scope of that Act is being reconsidered. That being the case, it seems to me very undesirable to extend its operation at the present time. I can see no case for doing that now. But the other objection that I have is perhaps more fundamental. In this country, apart from a few exceptions, it has been the general rule that anyone can institute a prosecution for a criminal offence. The exceptions are always exceptions created by Statute, requiring the consent—and we have had it already today—of either the Attorney General or the Director of Public Prosecutions. Each time you make that exception, my Lords, you are departing from what has been the general practice, the general rule, of our law.
  Sometimes it is very desirable. Some of your Lordships may remember publications which were called horror comics. They were, in fact, incapable of definition. In, I think, my time in the Commons, a Bill was introduced to make the publication of those horror comics an offence. It not being possible to define them, the requirement was inserted that there should be no prosecution without the Attorney-General's consent. That Bill was passed. The Attorney-General has never had to give his consent, there has been no prosecution and there have been no more
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  horror comics. I mention that as an instance.
  Some of your Lordships may remember a case fairly recently where comments were made, which received widespread publicity, about denying access to the courts. On this occasion, I shall not make any observations with regard to that. But if you are to let this provision operate to the effect that you are taking away the right that an individual now has to institute a prosecution for an offence at common law for something obscene, indecent, offensive, disgusting or injurious to morality, you are by Act of Parliament denying that individual's access to the courts.
  It is a great safeguard for there not to be that restriction. After all, if it is left to the Attorney-General to decide whether or not a case warrants a prosecution, he may be subjected to a great deal of fair or unfair criticism. It is much better that he should be able to say "I do not think this case warrants a prosecution. I do not think the evidence is strong enough. But, of course, it is open to you if you wish to start your own prosecution, with the risk that that may entail to you of, perhaps, a subsequent action for malicious prosecution on your part, with your being ordered to pay the costs of the prosecution." This is taking away what is a generally established right, and I see no reason for it.
  I do not know what pressures have been put upon the Home Office to introduce in the Commons this clause which was not in the original Bill. I hope this House will say that there should be second thoughts on this matter, and if the right reverend Prelate proposes to divide the House upon it I shall certainly find myself in the same Lobby with him.
  5.43 p.m.
  Lord SIMON of GLAISDALE: My Lords, may I express three misgivings about this Amendment? The first is that it was quite advisedly that cinematograph exhibitions were left out of the ambit of the Obscene Publications Act 1959. I had myself the privilege of being a Home Office representative on the Select Committee of 1957, which heard extensive evidence leading to the Bill which became the Act and drafted the Bill. In short, the reason why cinematograph films were left

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  out was this. Although there was considerable evidence that the law was illiberal, so far as works of literature, works of science and scientific works were concerned, and, on the other hand, allowed hard pornography to be purveyed, the evidence was overwhelming that, so far as cinematograph exhibitions were concerned, the law and the administrative back-up of the law operated successfully and satisfactorily. There was virtually no demand for change there. I have been out of touch with the problem ever since, but I have heard nothing to suggest that there is any need now to change the decision which was come to in 1959, after extensive debate and after a Select Committee of the other House had heard widespread and weighty evidence.
  The second misgiving I have is the one that has been adverted to by my noble and learned friend Lord Dilhorne. The right of the private citizen to invoke the criminal law is an important constitutional right and constitutional safeguard. It has, of course, sometimes to be limited. Your Lordships earlier today, in relation to Clause 9 which affects trespasses on foreign embassies, made it incumbent that the consent of the Attorney-General should be given to prosecutions. That is perfectly understandable. That is perfectly the kind of area in which consent is called for, in which the citizen's right might just be limited, but it should be quite exceptional. If the decision is otherwise, it should be taken seriously, solemnly and advisedly over a wide front, and not haphazardly leading to a gradual erosion of what has long been regarded as an important constitutional right of the private citizen in this country.
  The third reason was adverted to by the noble Lord, Lord Robertson, and the right reverend Prelate. It is surely ill-advised, at a moment when a departmental committee is considering the whole of this problem, to pre-empt it on one narrow aspect. In view of the controversial nature of this Amendment, I did not put down a Motion that the Amendment should be disagreed to. But if the House is divided, I shall myself go into the Lobby against the Amendment.
  5.48 p.m.
  Lord BESWICK: My Lords, it would seem to me that this is a case where it would be entirely proper for this House
  494
  to ask the Government to think again. In the first place, the Bill was fully considered in your Lordships' House. It then went to the other place. Apparently, the Opposition there suggested for certain reasons that there should be an Amendment at this point in the Bill, and the Government produced a form of words. But according to the spokesman of the Opposition in the other place, the form of words here is not entirely appropriate and is not entirely satisfactory. Indeed, it was suggested that, in the meantime, there might be amendments to this Amendment before it came to your Lordships' House. As I understand it, apart from the narrow point which my noble friend mentioned, there has been no attempt to meet the doubts which were expressed in the other place.
  We are now left with a very extensive Amendment, which Government Ministers affirmed more than once in the other place is only an interim solution, or, as one Minister described it, a temporary solution. I look at this temporary solution in a quite simple way. I have listened with enormous respect to the views that have been put by the noble and learned Lords on the Cross-Benches here, but my own attitude is somewhat less learned than theirs and, one might say, more simple.
  I ask myself the simple question: Does this help, as I believe a growing majority of people in this country would wish it to help, to curb that process which started as freedom of expression but which has degenerated into licence? Does it help to curb that process or not? On all the evidence that I am given, it does not curb that process. Indeed, it would facilitate a process which, as I say, I think a growing majority of people in this country would now like to see reversed. If the right reverend Prelate presses this Amendment I, for one, would certainly go into the Division Lobby with him.
  Lord HARRIS of GREENWICH: My Lords, I will deal with one point at the outset. The noble and learned Viscount, Lord Dilhorne, asked why this Amendment had come before us. The reason is that we were subjected to substantial pressure from both sides in another place and promised to do what is in effect now before us. The language of these Amendments is clearly something for which the Government accept responsibility, but

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  there is no doubt that very substantial feeling was expressed in another place. That is why the Amendment is now before the House.
  I certainly understand the argument—and indeed we had a discussion on it when the matter was last before us—that, as the present law of obscenity is found by many to be profoundly unsatisfactory, any proposal to extend it is bound to be controversial. It is for that reason, as I explained to your Lordships during earlier stages of the Bill, that we had wished to keep the existing law unchanged for the time being. But there was this considerable feeling expressed in another place on both sides; that is, that it is anomalous for the cinema to be singled out for a form of regulation which does not apply to plays or books. The argument runs that there is a good case for these media to be equated under the law while the Committee is deciding what form of law should apply generally in future. In addition, the argument was adduced that in the present law there might be a discouragement for local authorities to continue exercising their censorship functions. It is those arguments, coming from very different quarters, which led to the Commons Amendment which we now have before us.
  What is proposed in the new clause is not an unconsidered, last-minute thought. It is based on the thorough review which the Law Commission carried out into the common law on public morals and decency. Generally, as I have said, it follows the Law Commission's recommendations. They concluded that some kind of consent provision to protect cinemas and film societies from frivolous and vexatious proceedings was desirable; and the clause represents a sensible rationalisation of the law. It is difficult to argue that the cinema ought to be in a wholly different position from publications and theatre plays. That is the argument which was put to us. Nevertheless, even with the enactment of this clause, the cinema will continue to be, of course, more tightly controlled by virtue of the film censorship system, with which the clause does not interfere in any way.
  Lord SIMON of GLAISDALE: My Lords, I am grateful to the noble Lord for giving way. I wanted merely to ask this. Did not the Government fail to accept the recommendations of the Law Commission as to the conspiracy to corrupt public morals and conspiracy to outrage public decency, and instead refer the matter to the Williams Committee? Surely this falls precisely within that class of case.
  Lord HARRIS of GREENWICH: Yes, my Lords, I understand precisely the argument of the noble and learned Lord. It is the view of those who have spoken that in fact this matter should be put off and considered by the Williams Committee. But the Williams Committee, although I am sure it will work with diligence, will clearly take some time to report: and I must repeat that it was the view of both sides in another place that it was desirable to move at the moment on this question and to clear up what was regarded as a highly anomalous situation.
  As for the present position, with great respect to all those who have spoken, I should like to draw their attention to one very remarkable statistic. That is, that there has only once ever been a conviction in respect of an indecent film shown in a cinema; and the prevention of prosecutions in relation to indecency can hardly be said, therefore, to have had a substantial effect on the way in which the law will apply in practice. Moreover, the clause will clear up a confused situation in relation to what may be shown in cinema clubs and will bring them within the law on obscenity.
  Certainly, I agree at once that we have to bear in mind that we are not here legislating for the long term, as the noble and learned Viscount has pointed out. It is very much an interim solution which will be subject to revision in the light of the conclusions of the Williams Committee.
  5.56 p.m.
  On Question, Whether the said Amendment (No. 64A), as an Amendment to Commons Amendment No. 64, shall be agreed to?
  Their Lordships divided: Contents, 70; Not-Contents, 68.

  CONTENTS

  Alexander of Tunis, E.

  Elton, L.

  Morris, L.

  Amherst, E.

  Emmet of Amberley, B.

  Mottistone, L.

  Amherst of Hackney, L.

  Falkland, V.

  Mountgarret, V.

  Arran, E.

  Gainford, L.

  Newall, L.

  Auckland, L.

  Geoffrey-Lloyd, L.

  Northchurch, B.

  Avon, E.

  Granville of Eye, L.

  Platt, L.

  Barrington, V.

  Hailsham of Saint Marylebone, L.

  St. Aldwyn, E.

  Beaumont of Whitley, L.

  St. Davids, V.

  Belstead, L.

  Hanworth, V.

  Sandford, L.

  Berkeley, B.

  Hawke, L.

  Sandys, L.

  Bledisloe, V.

  Henley, L.

  Simon, V.

  Boyd-Carpenter, L.

  Hornsby-Smith, B.

  Simon of Glaisdale, L.

  Brougham and Vaux, L.

  Hylton-Foster, B.

  Spens, L.

  Campbell of Croy, L.

  Inglewood, L.

  Stamp, L.

  Carr of Hadley, L.

  Killearn, L.

  Strathclyde, L.

  Cathcart, E.

  Limerick, E.

  Strathcona and Mount Royal, L.

  Colwyn, L.

  Lloyd of Kilgerran, L.

  Swinfen, L.

  Cullen of Ashbourne, L.

  Long, V.

  Terrington, L.

  Daventry, V.

  Luke, L.

  Trefgarne, L.

  de Clifford, L.

  Lyell, L. [Teller.]

  Vickers, B.

  De Freyne, L.

  Macleod of Borve, B.

  Vivian, L.

  Denham, L.

  Mansfield, E.

  Wade, L.

  Derwent, L.

  Margadale, L.

  Wakefield of Kendal, L.

  Dilhorne, V.

  Merrivale, L.

  Ward of North Tyneside, B.

  Dormer, L.

  Mills, V.

  Wedgwood, L.

  Drumalbyn, L.

  Monck, V.

  Westbury, L.

  Elliot of Harwood, B.

  Monson, L.

  Wigoder, L. [Teller.]

  NOT-CONTENTS

  Ardwick, L.

  George-Brown, L.

  Peddie, L.

  Aylestone, L.

  Gifford, L.

  Phillips, B.

  Birk, B.

  Gordon-Walker, L.

  Pitt of Hampstead, L.

  Blyton, L.

  Gosford, E.

  Ponsonby of Shulbrede, L.

  Boston of Faversham, L.

  Hale, L.

  Ritchie-Calder, L.

  Brimelow, L.

  Harris of Greenwich, L.

  Segal, L.

  Brockway, L.

  Henderson, L.

  Shepherd, L.

  Bruce of Donington, L.

  Houghton of Sowerby, L.

  Stedman, B. [Teller.]

  Burton of Coventry, B.

  Kagan, L.

  Stewart of Alvechurch, B.

  Champion, L.

  Kirkhill, L.

  Stone, L.

  Collison, L.

  Leatherland, L.

  Stow Hill, L.

  Cooper of Stockton Heath, L.

  Llewelyn-Davies of Hastoe, B.

  Strabolgi, L.

  Crook, L.

  Longford, E.

  Wallace of Coslany, L. [Teller.]

  Davies of Leek, L.

  Lovell-Davis, L.

  White, B.

  Delacourt-Smith of Alteryn, B.

  McCluskey, L.

  Willis, L.

  Donaldson of Kingsbridge, L.

  Melchett, L.

  Winterbottom, L.

  Elwyn-Jones, L. (L. Chancellor.)

  Milner of Leeds, L.

  Wootton of Abinger, B.

  Faithfull, B.

  Murray of Gravesend, L.

  Wynne-Jones, L.

  Gaitskell, B.

  Oram, L.

  Gardiner, L.

  Peart, L. (L. Privy Seal.)

  On Question, Motion agreed to.

  Resolved in the affirmative, and Amendment to the Amendment agreed to accordingly.
  On Question, Amendment No. 64, as amended by Amendment No. 64A, agreed to.

  COMMONS AMENDMENT
  65 Leave out Clause 43.
  65A The Lord Wigoder to move, That this House do disagree with the Commons in their Amendment No. 65.
  6.5 p.m.
  Lord WIGODER: My Lords, I beg to move that this House doth disagree with the Commons in their Amendment
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  No. 65. I do so, while first assuring your Lordships that, so far as I can see, in no way can this be regarded as a Party political issue. Certainly I hope that my noble friends ort these Benches will vote entirely on the merits of the argument and with no other considerations in mind. Secondly, may I suggest that it is desirable that the other House should have an opportunity to reconsider this matter because of the rather unfortunate circumstances in which it comes before your Lordships today. Your Lordships passed an Amendment at the Report stage which was considered in Standing Committee in the other place where it was defeated by one vote, there being absent one

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  Member of the Standing Committee. I am sorry to have to say that it was the Liberal Member who would, in fact, have voted for your Lordships' Amendment. It is, therefore, in a sense accidental that the Amendment which your Lordships passed was thereby defeated in the other place.
  Amendment No. 65A is not in itself very informative. Amendment No. 65 merely reads: "Leave out Clause 43". That is not very informative, either. Clause 43 simply reads that:
  "Section 3 of the Criminal Justice Act 1961 … is hereby repealed".
  That, in its turn, is not particularly informative. Therefore your Lordships will perhaps forgive me if I indicate that what we are now dealing with are the merits or demerits of Section 3 of the Criminal Justice Act 1961, which prescribes that:
  "… a sentence of imprisonment shall not be passed by any court on a person within the limits of age which qualify for a sentence of borstal training except—(a) for a term not exceeding six months; or (b) … for a term of not less than three years".
  Then there is a futher provision, that in certain circumstances where a young person has already served a borstal sentence the sentence should be 18 months rather than three years. In other words, I am seeking to urge upon your Lordships that that provision is harmful and should be repealed. It is a harmful provision because it has fettered the discretion of the courts, which wish to deal as leniently as possible with young people who are in trouble.
  I hardly think that it is necessary to rehearse all the arguments. Your Lordships heard them at both the Committee and Report stages. Your Lordships heard the noble and learned Lords, Lord Dilhorne, Lord Hailsham of Saint Marylebone, Lord Morris of Borth-y-Gest, Lord Salmon and Lord Edmund-Davies all speak in support of this proposition. The position is that if a young person has committed an offence and borstal is clearly not an appropriate sentence, the law as it stands compels the judge to make the decision that the sentence of imprisonment, if he decides that that is inevitable, has to be either six months or less, or three years or more. What the results are it is not easy to discover by any kind of statistical
  500
  analysis. There are, no doubt, certain cases in which, faced with this section, judges have sent a young man to borstal rather than to prison. I doubt whether there are very many cases of this kind. I venture to think that most judges take the view, on the facts of the case, either that imprisonment is or is not necessary or that borstal is or is not necessary, and that they are unlikely to be influenced by this section in preferring borstal to imprisonment.
  Secondly, there are certain cases in which a court, dealing with a young person and deciding that imprisonment is necessary, feels that a sentence of nine or 12 months is appropriate but, because of this section, passes a sentence of six months' imprisonment. That is desirable, and to that extent one can commend this section.
  Thirdly, it is within the experience of everyone who practices in the criminal courts or who tries cases in the criminal courts, that there have been any number of cases in which young people have been convicted of serious offences for which the appropriate penalty might be one of 18 months or 21 months or two years, but the judge finds himself impelled by this section to pass a sentence of three years' imprisonment. One can state that categorically as a fact because the Law Reports and the Court of Appeal Criminal Division are littered with cases in which people have been sentenced to three years' imprisonment simply because of the terms of this section, the judge having specifically said that he would very much rather have passed a lesser sentence.
  I put the case for repealing this section in a very simple way. In passing sentence, the golden rule is never to send a person to prison for one day longer than is absolutely necessary. This section compels judges over and over again to send young people to prison for substantial periods in excess of the appropriate sentence. In those circumstances, I hope your Lordships will agree that it would be desirable that the other place should be asked to reconsider their opposition to your Lordships' Amendment. I beg to move that this House doth not agree with the Commons in their Amendment No. 65.
  Moved, That this House doth not agree with the Commons in the said Amendment.—(Lord Wigoder.)
  6.12 p.m.
  Viscount DILHORNE: My Lords, I am glad the noble Lord, Lord Wigoder, tabled this proposed rejection of the Amendment made in the other House. The House will remember that this subject was initially raised by my noble and learned friend Lord Morris of Borth-y-Gest, and he has asked me to say how very much he regrets that, owing to his having an important public duty to discharge in the country tomorrow, he is unable to be here this evening. He has asked me also to say that if he had been here he would have spoken in support of the noble Lord, Lord Wigoder, and indeed he has handed me very full notes of his speech, but I will not attempt to deliver it.
  We have debated this subject now twice in this House and, despite encouragement from the noble and learned Lord, Lord Hailsham of Saint. Marylebone, I do not propose to repeat what I have said. I should like to summarise one or two things. It is the fact, and I do not think it can be disputed, that Section 3 of the Criminal Justice Act prevents the proper administration of justice. The noble Lord, Lord Wigoder, spoke of the golden rule of not passing a day longer sentence of imprisonment than was absolutely essential. That is only one side of the golden rule; the other side is that you do not pass a sentence of imprisonment if there is any possible alternative.
  Under this particular section passed in 1961 the judge, in the exercise of his judgment, passing what he considers to be the appropriate sentence for a young offender, is completely restricted. If this Amendment by the Commons is rejected it will indeed restore—to use the words of the noble Lord, Lord Harris of Greenwich—the freedom of judges to relate the length of a sentence more directly to the particular offence. I do not think it can be disputed that this particular section of this Act does impede the proper administration of justice, and in fact in its operation does lead to injustice.
  It is no use criticising Her Majesty's judges for passing unduly light sentences when by Act of Parliament that really is the only thing they can do. If in a case you are faced as a last resort with sending a young person to prison, your choice is
  502
  either a sentence of up to six months or one of more than three years. If a man under 21 is a member of a gang and the gang crime has been so serious that the others ought to go to prison for, say, two years, you cannot send the young one to prison for two years, although perhaps it would be unfair to send him for six months and the others for two years. So in all the cases that fall within this bracket the judge is faced frequently with the choice of either passing a sentence which he regards as being too light, or of going to the other end of the scale and passing a sentence which, if it errs at all, errs on the side of severity. That is the position which will remain if this section of the 1961 Act is retained.
  What are the arguments for its retention? They boil down to the simple proposition that the view of the Home Office is that it will lead to an increase in the prison population. That is worth examining. As a secondary argument it is said that it will lead to some people being sent to prison who would now go to borstal.
  Lord GARDINER: Hear, hear!
  Viscount DILHORNE: My Lords, when the noble and learned Lord, Lord Gardiner, says "Hear, hear", he ignores Section 3 of the Criminal Courts Act 1973, which provides that no court shall impose imprisonment on a person under 21 years of age unless the court is of opinion that no other method of dealing with him is appropriate. It may be that in years gone by, in 1961, in some cases some young persons were sent to prison who might have been sent to borstal; but in the light of this statutory provision we must rule out the possibility of a borstal sentence being adequate before any question of sending to prison ever arises for consideration. It is only if there is no alternative that a prison sentence can now lawfully be considered and, if it is considered, as the law now stands, and will stand if the Commons Amendment is accepted, the sentence of imprisonment is restricted in that way.
  Taking this into account too, I approach the question: Will this change in the law by the repeal of Section 3 of the 1961 Act increase the prison population? People can speculate about that. I

  503
  think the noble Lord, Lord Harris of Greenwich, answered a Question for Written Answer about it the other day. It really is impossible to predict the answer with any certainty at all. It may be on balance it will do so slightly; it may be that it will not do it at all. It is no use looking, as the Home Office repeatedly do, simply at the case of those who might be sentenced to nine or 12 months' imprisonment instead of now being sentenced to six months. We have to look at the other end and consider the case where the judge, knowing it is a very serious crime, would, if left to his own choice, perhaps pass a sentence of 21 months, but says: "As I have to choose between three years on the one hand or six months on the other, and as three years really is not an impossibly heavy sentence, I will give him three years"; yet if he was free to do so, he would give him 21 months. I give that as an illustration, my Lords, because it is quite impossible to say how this would work out in practice.
  I raise this other proposition. Let me assume for a moment that it increases the prison population. It really is not the judge's exercise of his powers to administer justice which brings about the great increase in prison population which we see recorded on the tape this afternoon. In these days it is because of the prevalence of serious criminal offences. That is the cause, and it really is ridiculous to try to restrict the judicial powers of punishment to suit the punishment to the offence with a view to relieving the prisons of a possible increase of population. That is all it is.
  We are told that some who are engaged in penal reform would regard this as a retrograde step. I have no doubt there are such people, but I do not think your Lordships would find a single judge who has had experience in administering the criminal law who would agree, or indeed my noble and learned friends who sit in this House with me, some of whom have had great experience of that aspect of the law, including my noble and learned friends Lord Edmund-Davies, Lord Salmon and Lord Diplock. I do not think that one will find any judge experienced in the administration of criminal law who does not think that Section 3 is a great blot on our system and that the sooner it goes the better our justice will be.
  Lord HARRIS of GREENWICH: As I think the noble Lord, Lord Wigoder, indicated at the beginning of his speech, we have been around this track, not once, not twice, not three times, but four times. Therefore, I hope that my speech, too, will be mercifully brief. I shall try to cover slightly different territory from that which I covered on the last occasion. However, I point out to the noble and learned Viscount, Lord Dilhorne, that he will not be altogether astonished to learn that the conclusion I have reached is rather similar to the one I reached on the previous occassion.
  I say at the outset that we are facing an extremely difficult situation. I can certainly understand people coming to a different conclusion from the one that I reach, but I must ask the House directly to examine what the real effect would be on the prison population if the Amendment were to be carried. I agree with the noble and learned Viscount, Lord Dilhorne, that there can be no certainty in this matter. The noble and learned Lord, Lord Morris of Borth-y-Gest, put down a Written Question to me on this matter last week. He asked what evidence the Government had to show what the effect would be upon sentence lengths. Of course, there is no evidence. I, no more than the noble Lord or noble Viscount, can precisely predict what the judicial reaction would be to a future, hypothetical event. However, that is not the central issue. What is clear is that repeal is likely to lead to a displacement of borstal sentences by prison sentences, as borstal ceases to be the mandatory, medium-term custodial sentence for this age group. If I am right in what I have just said, and I think that I am because it was generally accepted by most of those who participated in the debate in another place—
  Viscount DILHORNE: Before the noble Lord, Lord Harris of Greenwich, leaves the point he is making about borstal and ignores that section of the Act, I would point out that one cannot, without breaking the law, send a person to prison if one can send him to borstal for an intermediate term. In view of those provisions, it is really a nonsense to say that this will affect the numbers who go to borstal.
  Lord HARRIS of GREENWICH: With respect to the noble Viscount, Lord

  505
  Dilhorne, I do not reach the same conclusion as he reaches. It is a matter of judgment. I understand the Statute to which he is referring me, but it is a matter for the judge at the trial. It is a matter of fact and not of argument that borstal will cease to be the mandatory medium-term custodial sentence for this age group. That must be right. That being so, there will be an effect on the size of the borstal population; fewer people will be sent to borstal. However, the gains here will be wiped out in a matter of days because the borstal system, like the young offenders system as a whole, is overflowing. For example, in the North of England there is a queue of young people already sentenced to borstal training who are lining up in the remand and allocation centres to await the first vacant borstal places. Most of the gaps left in the borstal system, will, in this situation, be wiped out within a matter of days.
  The situation in the young prisoner sector is a great deal worse. Here it is not a question of young people queueing up for places in the young prisoners' centres, but an acceptance of the fact that a substantial proportion of young prisoners will never see at any stage in their sentence the inside of a young prisoners' centre, but will serve their sentences in overcrowded local prisons. On 30th June there were 2,157 young prisoners in custody, but only 927 were in young prisoners' establishments—just about a third. The remaining, 1,230 were mostly in very congested local prisons or remand centres. That means that the majority are serving their sentences in establishments designed neither to receive them nor to cater for their needs. I shall give way to the noble Viscount, Lord Dilhorne, in a moment, but with respect I must have an opportunity to deploy my argument. If Section 3 is repealed, that majority will, in our judgment, further increase.
  Viscount DILHORNE: Is it not the case that the Home Office is responsible for there being an inadequacy of accommodation?
  Lord HARRIS of GREENWICH: With great respect to the noble and learned Viscount, Lord Dilhorne, that question is unworthy of him. Of course, there has been a substantial increase in the
  506
  prison population. The Government of which the noble Viscount was a member and the Government between 1964 and 1970 must accept a measure of responsibility for the inadequacy. However, the fact is that that is the situation with which we are now confronted and it would be many years before we could provide extra places in these establishments.
  What we must do at present is consider what would be the effect of a change in the law of the kind which is being advocated by the noble Lord, Lord Wigoder. As I have indicated, if Section 3 were to be repealed in our view the pressure in the young prisoners' centres would get worse and there would be more young prisoners who would spend their sentences in already grossly overcrowded, local prisons.
  Although it is true that in the local prisons every effort is made—and I know that it is—to segregate young prisoners from adult prisoners, the conditions in which they have to be held are, frankly, in many cases highly unsatisfactory. They are not only severely overcrowded; they are often without the opportunity of work or association and are locked up in their cells for the greater part of the day, seven days a week. Let me quote some concrete examples. The young offender wing at Wormwood Scrubs Prison in London has places for only 38 young prisoners. However, on 30th June there were over 100 there. Additional cellular accommodation has had to be made available at the expense of other sections of the population of that prison, but there is still severe overcrowding and insufficient work for all. While some have part-time education, others are locked up nearly all day, with association for just one hour on only two evenings a week, and none at all at weekends. That is the situation in one London prison.
  This situation is repeated up and down the country. At Leeds on 30th June, there were 112 young prisoners in unsuitable conditions with wholly inadequate workshop facilities. Only 20 can have association on any one evening and there is no association at all at weekends. That means that they go out of their cells for a meal and for a short period of exercise and that is all. At Birmingham, on the

  507
  same date, there were only 47 young prisoners, but it was not possible to provide any of them with work and, apart from a short daily educational period and association about twice a week, they spend the rest of their sentence locked up.
  I am only too well aware of conditions of this kind when I visit prisons myself. A few months ago I went to Winchester. I was appalled to see the degree of overcrowding among the young offenders in that establishment. At that time there were over 100 offenders, almost a third of whom were sentenced young prisoners, in cellular accommodation designed for 62. It does not require must imagination to see what life is like in overcrowded conditions with totally inadequate facilities in one establishment after another within our prison system.
  In my judgment that situation will become worse if the Amendment is carried. These are not spurious arguments which have been worked out in a backroom of the Home Office in order to defeat the will of this House. They are facts and figures about a flesh and blood situation with which we are confronted at the moment. If we believed for a moment what the noble Lord, Lord Wigoder, said at the beginning of his speech, that passage of this Amendment would lead to a reduction of the pressure in our prison system, we would, of course, re-examine the situation at once. What we are confronted with at the moment are dangerously over-crowded prisons, with no immediate prospects of improving the situation, and what I must say with the utmost emphasis to your Lordships is that in our judgment passage of this Amendment will make that situation worse.
  The Earl of MANSFIELD: My Lords, this is a matter which has occupied the attention of your Lordships' House on a number of occasions, certainly since 1972 when, as I said before, it was the very first thing I ever moved in your Lordships' House. I do not think that this is an argument which can be continued very much further. Almost everything has been said which can be said. Sometimes it has been said more than once, and sometimes it has been said more attractively than at other times.
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  It seems to me that there are three real reasons why this Amendment, which commended itself to the House on Report, should be sent back to the other place. I accept, of course, the arguments of the noble Lord, Lord Harris, about the overcrowding in prisons and so on. I am bound to say it is an argument which we have not heard made quite so vociferously before. I am sure it is not spurious; I do not think that for a moment. But it is obviously made as a justification to the reforming zeal in all our bosoms, that we should perhaps think twice before we do what, if we look at the matter calmly, we can see is our plain duty.
  My first reason for making these remarks is this. The system at the moment, as any practitioner or any judge will agree, is manifestly unfair to the defendants themselves, certain people who come before the court for sentence. On many occasions, if borstal for one reason or another is inappropriate, the sentence of the court should lie somewhere between the six months and the three years which are at the heart of Section 3. One asks why it is that this unfairness on these young people should continue a moment longer than is absolutely necessary. I fully concede that at the time when the original Act came to be passed it was a good idea and it was passed in the way that it was with the best of intentions. I think that period has long since gone.
  Secondly, this section acts, as I regard it, as a totally unjustified fetter on the judges and the Judiciary. There seems to me very little point in having judges if they cannot be trusted to get on with the process of sentencing. Again and again they have said—and, let us face it, they should know better than most—that they have to undertake a course of action which they are disinclined to take bringing to bear their judgment, as they are supposed to do; because of this particular section they are enjoined to do it and they have to do so.
  Thirdly—and this, I think, is almost the most important matter—so far as the administration of justice is concerned this has now become a highly unsatisfactory way of going about sentencing these people. So often, as has been said, you get defendants of different age groups, or defendants who are in varying different ways blameworthy according to the part

  509
  that they may have played in the crime with which they are jointly charged. It may be that because somebody is over 21 the judge can deal with him in a way which is fair and which is seen to be fair. But because a young person is beneath that age this fetter is placed on the judge, and he has to take a course of action which is not only unfair on the young person himself but is also something which is a source of great aggrievement so far as joint defendants are concerned.
  How often one sees—and the newspapers, unfortunately, these days are very quick to point out what they consider to be the shortcomings of judges when it comes to sentencing—that judges are accused of either being soft or, indeed, being hard, when in fact all they have been doing is carrying out Section 3. That is something which the public does not understand and quite rightly questions, because it thinks the Judiciary are out of touch with what they are meant to be doing or else somehow are not fulfilling their duties.
  As I say, I can see the argument of the noble Lord, Lord Harris. If one thought that the abolition of Section 3 was going to lead to a large increase in the prison population, one would think very hard twice and thrice before pressing for its abolition. For myself, nothing that he has said has convinced me that in fact we are going to have the difficulties which he describes. If I may say so, he has put up the best argument he possibly can. He has put up an argument that Ministers of State from both the main political Parties have put up with varying degrees of charm and forcefulness from time to time. On the last occasion I was sitting somewhere near where the noble Baroness, Lady Wootton, is now sitting. I complained to my noble friend Lord Colville that he was trying to exercise justice by cash register and he got very angry. I at least am consistent. I intend to go on being consistent, and I hope a number of other noble Lords will agree. I do believe that my noble and learned friend Lord Hailsham agrees, and I hope that a few others do as well.
  Baroness WOOTTON of ABINGER: My Lords, anyone listening to the noble Lord, Lord Wigoder, the noble and learned Viscount, Lord Dilhorne, and the noble
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  Earl, Lord Mansfield, will hear an impeccable academic case and I would not dispute it for one moment. Nobody in their senses, writing Statutes within the four walls of the rooms of the Parliamentary draftsmen or within the four walls of this Chamber, designing the pattern of Statutes, makes a distinction of this kind, that you could only send persons of a certain age to prison for three years, and for a serious offence you would have to do something else with them. I notice the something else has been very little referred to.
  Most of the speeches have made very little reference to the fact that custodial sentences for these young people are possible. It is true that they are not very satisfactory at the moment, but they are a sight more satisfactory than what we optimistically call the young prisoner centres. The young prisoner centres at best tend to be wings attached to ordinary prisons, and at worst, as my noble friend Lord Harris has said, they are simply local gaols which are not different from adult prisons at all. If you cease to perform an academic exercise, and you put this exercise against the realities of the present situation, you do see that you are doing a monstrous thing by unnecessarily putting young people into prisons when they could go into institutions, which, though overcrowded, have at least been designed for people of their age.
  The difference between custodial sentences at borstal and custodial sentences in prison is that prisons, even those with young prison centres attached to them, have been designed by and large for the regime, and with, at one time adequate, but now inadequate, accommodation for grown-up men. Borstals at least were designed for people of the age group we are discussing. Though they are also overcrowded and also working under great difficulties, they at least are geared to the needs of this section of the population. If an offence is so serious that it necessitates detention for quite a long time, a borstal can keep an inmate for two years. If an offence is less serious, they can keep him for a shorter period, something between six months and two years. When noble Lords say that these people are not suitable for borstal, one wonders on what ground they have decided that prison is right and borstal is wrong, and one wonders how up to date

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  is their acquaintance with these various institutions.
  It is a year or two ago since I visited most of the borstals in this country and also a number of the so-called young prisoners' centres. I was absolutely convinced that it is totally wrong to send anyone who, I admit, must be kept in custody but who has not committed a very serious offence—such offence perhaps requiring a sentence of three years for reasons of public safety—to a prison establishment when there are borstals which are geared to deal with that kind of person.
  Baroness MACLEOD of BORVE: My Lords, as a humble magistrate, may I say that I have always looked up to the Judiciary. I am very surprised to hear tonight that the noble Lord, Lord Harris of Greenwich, obviously does not do that. In fact, as far as I can make out, he is suggesting that not only the Home Office, but he himself and others do not trust the Judiciary.
  Lord HARRIS of GREENWICH: No, my Lords; with great respect, that overstates very substantially the case that I put.
  Baroness MACLEOD of BORVE: My Lords, perhaps I should say "trusting the judgment of the Judiciary". They have very wide experience—far wider than any member of the Home Office or any Member of this House, apart from those who actually preside as judges. If they want the repeal of this clause I. for one would support them.
  Lord WIGODER: My Lords, it is apparent to your Lordships House that, however long this matter is discussed, there is practically no point of contact between those of us who wish to see this clause repealed and the Home Office who wish to see it maintained. The law is that no court may send a young person to prison unless no other way of dealing with him is appropriate. If that law is abided by then, whether this clause is repealed or not, the number of people who finish up in borstal cannot be affected.
  In those circumstances much of the appalling statistical information which has been given to us by the noble Lord, Lord
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  Harris of Greenwich—interesting though it is—is quite irrelevant to the discussion. With great respect to the noble Baroness, Lady Wootton of Abinger, equally, argument about the merits of demerits of borstal and prison as penal institutions becomes irrelevant to this discussion.
  Baroness WOOTTON of ABINGER: My Lords, would the noble Lord say where the young people who are now sent to prison and who the Judiciary think perhaps need 18 months in custody now go while this provision lasts?
  Lord WIGODER: My Lords, the present position is that if a court comes to the conclusion that imprisonment is necessary and there is no other way of dealing with a young man except by a sentence of imprisonment, then a sentence of imprisonment has to be passed.
  Baroness WOOTTON of ABINGER: My Lords, that is not an answer to my question, if I may respectfully say so. My question was: If a custodial sentence of something like 18 months is thought to be necessary, what do they do with them now?—they send them to borstal.
  Lord WIGODER: My Lords, no; they send them to prison for three years, and that is precisely what we want to stop. There is really little point in pursuing the matter. I venture to say that I am perhaps the only Member of your Lordships' House who has the distressing task for four or five weeks a year in a Crown Court of sentencing people who have committed offences. One sees young people, and I assure your Lordships that no judge would ever send a young person to prison unless it was absolutely necessary. What is an impossible burden is that, having come to the reluctant conclusion that it is absolutely necessary, one's hands are then tied and one is unable to impose the appropriate sentence.
  6.44 p.m.
  On Question, Whether this House doth disagree with the Commons in their Amendment No. 65.
  Their Lordships divided: Contents, 80; Non-Contents, 58.
  Resolved in the affirmative, and Commons Amendment disagreed to accordingly.

  COMMONS AMENDMENTS
  66 After Clause 45, insert the following new clause:
  Alteration of maximum periods of imprisonment in default of payment fines etc.
  "For the Table in paragraph 1 of Schedule 3 to the Magistrates' Courts Act 1952 (maximum periods of imprisonment in default of payment of fines etc.) there shall be substituted the following Table:—

  "TABLE

  An amount not exceeding £25

  7 days

  An amount exceeding

  £25 but not exceeding £50

  14 days

  An amount exceeding £50 but not exceeding £200

  30 days

  An amount exceeding £200 but not exceeding £500

  60 days

  An amount exceeding £500 but not exceeding £1,000

  90 days

  An amount exceeding £1,000 but not exceeding £2,500

  6 months

  An amount exceeding £2,500 but not exceeding £5,000

  9 months

  An amount exceeding £5,000

  12 months."."

  67 Clause 47, page 36, line 11, after "sum", insert "or sums".
  68 Clause 47, page 36, line 12, leave out "was" and insert "were".
  69 Clause 47, page 36, line 14, after "sum", insert "or sums".
  70 Clause 47, page 36, line 15, leave out "as appears" and insert "or sums as appear".
  71 Clause 47, page 36, line 21, at end insert—
  "(d) the Table in paragraph 1 of Schedule 3 to the Magistrates' Courts Act 1952 (maximum periods of imprisonment in default of payment of fines etc.)".
  6.51 p.m.
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 66 to 71. If I may, I will speak also to Amendments Nos. 87, 145, 162, 164, 166, 171, 174, 195 and 197. All these, except No. 145, are consequential on Amendment No. 66. The new clause, Amendment No. 66, amends the ratio of maximum periods of imprisonment which may be imposed for fine default to the amount of money outstanding. The present table provides that for a sum not exceeding £2 a maximum sentence of seven days may be imposed, for between £2 and £5, 14 days for £5 to £20, 30 days, for £20 to £50, 60 days and for more than £50, 90 days may be given. As the House will see from the figures in the new clause we have drastically amended the relationship between the sum and the period.
  The Amendment goes beyond the adjustment which would have been necessary to take account of inflation and this reflects a growing concern about the practice of imprisoning fine defaulters. Amendment No. 145 alters the fine enforcement procedure to ensure that magistrates may only imprison those defaulters who have failed to pay a fine through wilful refusal or culpable neglect. The two taken together will, I hope, greatly reduce the number of fine defaulters in prison. On 30th June 1976, of a sentenced male prison population of 28,093, 1,149 prisoners, or just over 4 per cent. were there through defaulting of the payment of fines.
  All the evidence we have indicates that it is the threat of prison rather than the actual time served that is effective in ensuring the payment of fines. I know of no suitable alternative sanction, in the last analysis, for fine defaulters other than imprisonment, but given that it is the
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  sight of a warrant of commitment that in many cases results in payment, I feel that it is absolutely right to reduce the liability to longer periods of imprisonment and this is what the new clause seeks to do. I beg to move.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Harris of Greenwich.)

  COMMONS AMENDMENTS
  72 After Clause 47, insert the following new clause:
  Right to have someone informed when arrested
  " . Where any person has been arrested, other than under the Prevention of Terrorism Act 1976, and is being held in custody in a police station or other premises, he shall be entitled to have intimation of his arrest and of the place where he is being held sent to a person of his choosing."
  AMENDMENTS TO COMMONS AMENDMENT No. 72
  72A Line 1, leave out from ("arrested") to ("and") in line 2.
  72B Line 5, leave out ("a person of his choosing") and insert ("one person reasonably named by him, without delay or, where some delay is necessary in the interest of the investigation or prevention of crime or the apprehension of offenders, with no more delay than is so necessary.")
  6.54 p.m.
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 72, as amended by Amendments Nos. 72A and 72B. The clause as drafted was added to the Bill at a late stage and against Government advice. It seeks to give a person who is arrested in England or Wales—other than a person arrested under the terms of the Prevention of Terrorism Act—a statutory and unqualified right to have intimation of his arrest and the place of his detention conveyed to a person of his choosing.
  The main reason why the Government objected to the clause was this. The subject matter of this clause is only one aspect of the police procedures in the investigation of crime and the questioning of suspected persons. It is an important point but it is only part of a much wider picture. This wider picture is now to come under review by the Royal Commission

  517
  which has recently been set up to look at pre-trial procedures as a whole. The Government did not consider it desirable, at a time when the Royal Commission has just been set up, to attempt to tackle one aspect of this remit in isolation in this way. We thought that the Royal Commission should be given the opportunity to take a broad view of the situation and to bring forward balanced and comprehensive proposals.
  As for the clause itself, as drafted, it confers an absolute and unqualified right on a person in custody to have intimation of the fact of his arrest and place of his detention conveyed to any person of his choosing. This was to be done without reference to the wider implications of such an intimation. No one disputes that as a general rule, and in accordance with good police practice, an arrested person should be able to inform relatives or of course his solicitor of his arrest. But there are some cases where notification can have grave effects by way of the escape of the arrested person's criminal associates, the destruction of evidence or interference with witnesses.
  The Association of Chief Police Officers has issued a statement underlining the serious implications which such an unqualified right could have for investigating officers in dealing with crime and thus for society. This is not a factor which it would be right to ignore. Perhaps I can give your Lordships two examples of the considerations which could arise. The police may be dealing with a gang rape. They may have arrested one of the gang but not the others. If early news of his arrest leaks out to the other members of the gang they may escape, and it may prove much more difficult to bring them before the courts. The second example is a kidnapping case where the police have arrested one of the kidnappers but not the others, and are not aware of the place where the victim is being held. Clearly in that situation premature news of the arrest could lead to harm—perhaps grave harm—to the victim, and the escape of the other kidnappers. I think, and I suspect that most of your Lordships would think, that considerations of this sort are pretty persuasive.
  However, it was clear from the debate in another place that there was a considerable measure of support for the principle
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  underlying the new clause to which my right honourable friend the Home Secretary wished to respond. My right honourable friend has accordingly been giving further consideration to the question of how there should be some recognition of the principle set out in the clause as drafted in the period before the Royal Commission is able to complete its work. It is as a result of this consideration that the Government have put down the Amendments on the Order Paper.
  These Amendments incorporate a number of changes. First, the exception referring to persons arrested under the Prevention of Terrorism legislation is removed, so that the clause applies to such persons as well as to those arrested under other powers. Secondly, it is proposed that the intimation should be sent "without delay"; by comparison no requirement as to the urgency of the intimation is included in the present clause. Thirdly, the intimation may be sent only to a person "reasonably named" by the person in custody. Fourthly, and perhaps most importantly, the Amendments have the effect of enabling the police to delay sending the intimation, if this is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, for so long as those considerations apply, but no longer.
  I explained earlier some of the considerations which may make it necessary to delay intimation and we would propsoe to set out what we think is good practice and to give some examples of the need for delay in the circular which the Home Office will be sending to chief officers of police on the Bill when it comes into force. The Government believe that these Amendments have the effect of preserving the spirit of the clause while removing the risk that it will impose an unfair handicap on the police in the work which they do on behalf of all of us in preventing and detecting crime.
  Moved, That the House doth agree with the Commons in the said Amendment, as amended by Amendments Nos. 72A and 72B.—(Lord Harris of Greenwich.)
  Lord HALE: My Lords, I understood that the noble Lord, Lord Wigoder, was about to move Amendment No. 72C.
  The DEPUTY SPEAKER (Lord Der-went): When we come to Amendment No. 72C it will not be moved, my Lords.
  Lord HALE: In the light of that, my Lords, I feel that I must make a brief observation. My difficulty is that, when considering the criminal situation at the moment, this is an Amendment which as a young man I should have voted for unhesitatingly, without reservation and without inhibition of any kind. I say again that we have a metropolitan mind in this House, despite the type of assembly we are. We would not think twice about ringing up a solicitor at two o'clock in the morning and asking him to see a man's wife; what response one might receive is a different matter. People get arrested in Nether Wallop, Oswaldtwistle and in counties like Cumberland or mid-York-shire, where to put a reference to a solicitor is not such an easy matter.
  The normal object of what we are discussing, in times when crime was not the menace it is, arose quite simply. When I was in practice 50 years ago I was surprised at the number of my clients who were arrested at just before midnight when they were away from home; it was almost standard practice. All they wanted to do, as most of them were charged with offences which might affect their honour, probably with no question of security arising, was to telephone their wives to let them know what had happened. Probably the wife was sitting up anxiously and he had been arrested with some damsel at an Oddfellows' dinner or possibly even at a Frothblowers' feast. Probably at about 3 o'clock in the morning he was asked whether he would like to sign a statement and, because he wanted to go home to his wife, he signed it and then he could be released on bail by an officer of the rank of inspector. That often happened and indeed it was the practice. It worked, although it may not have been very desirable, and in those days the need to have the right to communicate with one's home was surely a reasonable one.
  Now we are dealing—my noble friend Lord Harris of Greenwich showed he appreciated this when he accepted offences under the special Act dealing with terrorism—with a different state of affairs. Today one cannot really ask the police, who are trying to round up a gang using explosives
  520
  and other terrorist methods—some of whom, probably the nucleus, are still in London while some of whom are on the train to Liverpool, perhaps en route for Southern Ireland—to allow messages to go out conveying information. Clearly the people on the train would be the first to be informed that an arrest had been made and clearly they would be assisted in their getaway.
  If a police officer in these days of organised gangs was told, "I have been arrested and I demand my right under section so and so and I want somebody informed" and the officer says, "Who do you want to inform?" and the man replies, "My twin brother" and the officer asks, "What is your name?" and the man replies "Kray", then the policeman—he might not know anything about the main arrest, being, say, an attendant at the police station cells—could be in considerable difficulty. He could be informing a gangster's brother, who is perhaps already under suspicion and whom the police are hoping to find, and that could result in crime being committed to suppress evidence or aid the getaway. It becomes a very serious matter to consider and something which, if possible, one should not make mandatory. Lord Harris explained the reason for the drafting of the Amendments and those reasons are perfectly obvious. Indeed, part of them I have already expressed.
  I think there is more than one objection to the Amendment No. 72C, standing in the name of the noble Lord, Lord Wigoder, but if, as I understand, that Amendment is not to be moved, I need not mention them. I would point out, however, that apart from anything else, it is not a good thing for the police to select a solicitor if one does not have a solicitor. I read the noble Lord's Amendment and I felt that in his effort to deal with these possibilities his proposal would make the Commons Amendment almost unenforceable. I do not suggest that was his intention and I quite understand the difficulties of drafting an Amendment of that kind and leaving a discretion. However, I have reluctantly come to the conclusion that in the present circumstances the police should have a discretion in dealing with gangster crimes, with mass conspiracies and so on. I could have wished that the provision was made a little more explicit, but it is not always a good thing to make legislation too

  521
  explicit. In the circumstances, therefore, I shall not dissent from my noble friend. I felt I should express my reasons for having altered my mind about some things that years ago, in a different situation, I should have been much more in sympathy with.
  7.10 p.m.
  The Earl of MANSFIELD: My Lords, I do not suppose that any noble Lord will be out of sympathy with what the movers of this Amendment wanted to achieve, but I am bound to point out that I think they have gone about it in a very silly way, and that silliness has not been altogether cured by the Amendment which the noble Lord, Lord Harris, asks us to accept. I suppose that there are three reasons why somebody in police custody wishes to communicate with the outside world. First of all, and most innocently, he wants to tell his family where he is. Secondly, and innocently or not, he wants to make some form of preparation for obtaining legal advice. Thirdly, and much more sinisterly, he wants to get word to his fellow criminals that, so far as he is concerned, "the balloon has gone up", and, so far as they are concerned, they must either make good their escape or at any rate try to get rid of the stolen property, the swag, the evidence or whatever it is which may in the near future make life even more uncomfortable for the man in custody.
  My Lords, if such a man's reason has either of the first two of the aims that I have enumerated, then I have no doubt that under the existing Judges' Rules the police will do everything they can, at least at the proper time, to comply with the arrested person's wishes. Obviously, if he merely wants word sent to his family, they will send it. If he wants the services of a solicitor, in my experience the police will probably wait until dawn the next day, but they will convey to the solicitor of his choice, or indeed to any solicitor on the legal aid panel, that his services are required. If the police think that the purpose of communication is less innocent, then they will do everything they can to obstruct the relaying of the message, by whatever means, until they think that the danger is passed or their inquiries are complete. I say all this because I think that this is a very silly Amendment, and I think that it is particularly silly because it
  522
  brings the police into an area where they can be criticised unfairly when they are merely trying to carry out their already very difficult job, which is to clear up crime.
  This new clause does not say how the intimation of the arrest is to be sent, or by what means; nor does it say what is to happen if it is not sent or if it is not sent without delay. One is bound to ask the noble Lord, Lord Harris, because he is in charge of the Bill: suppose that at some later stage, at a man's trial, his counsel gets up and indignantly says that notification of arrest was delayed, what is then to happen? It will merely prejudice the matters which the jury will have to consider and it will not really do the accused person any good. All in all, one can see that, at best, this Amendment is going to cause trouble for the police, and, at worst, it is going to cause miscarriages of justice.
  Lord MONSON: My Lords, while I accept the validity of the arguments set out by the noble Lord, Lord Harris, against the Commons Amendment as it stands, essentially desirable though I think the Commons Amendment is—and here I must disagree with the noble Earl, Lord Mansfield, because I think there have been a couple of cases of abuse recently—may I put two questions to the noble Lord? First, is it not the case that in Scotland a detained person has an unfettered right to communicate with another person of his choice? Secondly, who is to be the judge of whether someone is or is not "reasonably named", to use the rather curious phraseology employed in the Amendment of the noble Lord, Lord Harris?
  7.14 p.m.
  Lord HARRIS of GREENWICH: My Lords, I will deal, if I may, with the various points which have been raised. I think we were clearly presented with a difficult situation, to which the noble Earl, Lord Mansfield, has drawn our attention. As we are proceeding in a very harmonious way, I will not make any comment about what actually happened in terms of a Division on this matter which took place in the House of Commons, but the noble Earl may have observed on looking at Hansard that there were not many

  523
  members of his Party who went into the Lobby against it. But the point I would put to the noble Earl is this. These issues, of course, are put at criminal trials now; and, of course, there are the Judges' Rules. It is often alleged that a person has not had the opportunity to consult his solicitor, to notify his relatives or something of this sort, and that becomes something of an issue. In certain circumstances, of course, if it can be argued that the police have behaved harshly and oppressively, no doubt it may affect the attitude of the judge to the admissibility of any statement which might have been made. Issues of that sort have been raised in the past, and they will be raised in the future as well, no doubt.
  But, my Lords, so far as this particular clause is concerned, there is no penalty section. It is a declaratory statement of the situation. It will have an effect on the police, and, as I have indicated, we will deal with this matter by means of a circular when the Bill is in fact published. As I indicated, I think that the Association of Chief Police Officers were seriously disturbed about the Amendment as passed in another place, and I very much hope that they will take a different attitude to this Amendment. Certainly, if a policeman behaves unreasonably there are steps which can be taken; and we have now a complaints procedure against police officers who in fact violate the disciplinary code of their force. So that is one way in which action could be taken if—and, I repeat, "if"—a policeman has behaved harshly and oppressively. But, as the noble Earl has pointed out, as indeed I did when I spoke a few moments ago, the fact of the matter is that in a number of cases it could raise very dangerous issues indeed were the police to be compelled immediately to notify someone nominated by an accused person, simply at the bidding of that man. I gave two examples, but there are many others which could be cited to demonstrate the difficulties which could arise were the police to be compelled to do that, even though they thought it could seriously damage the interests of justice.
  So far as concerns the noble Lord, Lord Monson, he raised one particular point. I will, if I may, deal with the Scottish point in a letter to him. It is a complicated matter. It is not quite as he suggested, but I will gladly tell him about the situation.
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  I think it can probably be more sensibly dealt with in correspondence. The point he raised with me concerned the rather curious phrase—and I entirely agree with him—about
  "one person reasonably named by him".
  The reason for that is this. We of course considered the possibility of putting in a long list of people, but where does that list stop? Do you say "the spouse"? What about the common law wife? Does she go in, or does she not? What about other members of the family, assuming he is a single man? If you have a long catalogue of people, it makes something of a nonsense of the situation; and, apart from anything else, there is always the risk that you will leave somebody out.
  There is also another risk, that an accused person who has an absolute right to have his whereabouts communicated to somebody may name, to take an example, the Archbishop of Canterbury, or somebody of that sort. It would be an absurdity if the police were under a compulsion to notify the Archbishop of Canterbury or the President of the United States, or somebody of that sort, because of the language of the Statute. Therefore, we have said "reasonably named" simply in order to deal with this particular problem. I think it makes more sense than any alternative form of words.
  The Earl of MANSFIELD: My Lords, before the noble Lord sits down, would he confirm that Section 19 of the Criminal Procedure (Scotland) Act 1975 reads:
  "Where any person has been arrested on any criminal charge, such person shall be entitled immediately upon such arrest to have intimation sent to a solicitor that his professional assistance is required by such person …"?
  Would the noble Lord agree that, mutatis mutandis, the same section applies to both summary and non-summary offences, as I might call them? Would he further agree that, in a way, that clears up the matter raised by the noble Lord, Lord Monson? I say this for the record now.
  [Amendment No. 72C not moved.]
  Amendment No. 72, as amended, agreed to.

  COMMONS AMENDMENTS
  73 Clause 48, page 37, leave out line 20 and insert—"section 15(2), (3) and (3A); section 30(2A);"
  74 Clause 48, page 37, line 20, at end insert "section 31 (7A);"
  75 Clause 48, page 37, line 20, at end insert "section 32(3);"
  76 Clause 48, page 37, line 20, at end insert "section (Penalty for offences under s. 3 of Explosive Substances Act 1883);
  77 Clause 48, page 37, line 20, at end insert sections (Execution throughout United Kingdom of warrants of arrest, (Service of summonses and citation throughout United Kingdom). (Transfer of fine orders) and Schedule (Transfer of fine orders);
  78 Clause 48, page 37, leave out line 21 and insert "sections 39, (Bomb Hoaxes) and (Misuse of Drugs Act 1971: redefinition of cannabis);
  79 Clause 48, page 37, line 24, at end insert "Night Poaching Act 1828,"
  80 Clause 48, page 37, line 25, at end insert "Explosive Substances Act 1883,"
  81 Clause 48, page 37, line 27, at end insert "Adoption Act 1958,"
  82 Clause 48, page 37, line 34, at end insert "Companies Act 1967,"
  83 Clause 48, page 37, line 34, at end insert "Gaming Act 1968,"
  84 Clause 48, page 37, line 34, at end insert "section 179 of the Road Traffic Act 1972,"
  85 Clause 48, page 37, line 38, at end insert "Night Poaching Act 1828, Truck Act 1831,"
  86 Clause 48, page 37, line 42, at end insert "Truck Amendment Act 1887,"
  87 Clause 48, Page 38, line 1, at beginning insert "section 283 of the"
  88 Clause 48, Page 38, line 4, at end insert "Penalties for Drunkenness Act 1972."
  89 Clause 48, Page 38, line 4, at end insert "Criminal Justice (Scotland) Act 1973"
  90 Clause 48, Page 38, line 7, leave out "and insert" 92(8) and 106(2)(f)"
  91 Clause 48, Page 38, line 4, after second "and", insert "' in relation to enactments mentioned therein which extend to Scotland, Part I of"
  92 Clause 48, Page 38, line 10, at end insert "section 59(5)(e) of and paragraph 48(a) of Scheuled 8 to the Courts Act 1971."
  101 Clause 48, Page 41, line 5, at end insert:

  "NIGHT POACHING ACT 1828 (c. 69)

  1. Offences under section 1 (taking or destroying game or rabbits by night or entering land for that purpose).

  Section 1.

  For the words from "such offender" onwards substitute "he shall be liable on summary conviction to a fine not exceeding £200".

  (a) for a first offence, on summary conviction, 3 months or £100 and, in default of finding sureties of £10, a further 6 months;

  £200

  (b) for a second offence, on summary conviction, 6 months or £100 and, in default of finding sureties of £20, a further 12 months;

  (c) for a third offence, on conviction on indictment, 2 years or a fine or both.

  TRUCK ACT 1831 (c. 37)

  2. Offences under section 9 (entering into illegal contracts or making illegal payments).

  Section 9.

  For the words from "for the first" onwards substitute "be liable on summary conviction to a fine not exceeding £200.".

  (a) for a first offence, £10;

  £200."

  (b) for a second offence £20;

  (c) for a third offence, £100.

  93 Clause 48, Page 41, line 12, at end insert "section 58(a) of the Powers of Criminal Courts Act 1973,"
  94 Clause 48, Page 41, line 14, at end insert "Criminal Procedure (Scotland) Act 1975,"
  95 Clause 48, Page 41, line 15, at end insert "Schedule (Matters ancillary to section (Prison sentence partly served and partly suspended.)) paragraph 3(3)"
  96 Clause 50, page 38, line 38, leave out "Part III of this Act so far as it relates" and insert "The provisions of sections 14 to 32 and 38 above, so far as they relate".
  97 Clause 50, page 38, line 40, leave out "the said Part III" and insert "those provisions"
  98 Clause 50, Page 39, line 7, at beginning insert "Subject to the transitional provisions contained in this Act,"
  99 Clause 50, Page 39, line 27, leave out paragraph (b) and insert—
  (b) the following provisions extend to Northern Ireland namely—

  sections (Execution throughout United Kingdom of warrants of arrest), (Service of summonses and citation throughout United Kingdom) and (Transfer of fine orders),

  section 36,

  section (Misuse of Drugs Act 1971: redefinition of cannabis),

  section 41(4) to (6),

  subsections (1), (3) and (6) to (10) of this section,

  Schedule (Transfer of fine orders), in Schedule 11, paragraph 4;

  100 Clause 50, page 40, line 7, after "Scotland);" insert—
  "(e) section 32(3) extends to all places (except Scotland) to which section 2 of the European Communities Act 1972 extends (as well as, by virtue of paragraph (a) above, to Scotland), and the provisions of section 28(6) and (7), in their operation in relation to the provision that may be made under section 2(2) of the said Act of 1972, extend to all such places (except Scotland);"
  102 Page 42, leave out lines 32 to 38.
  103 Page 46, line 15, column 5, leave out paragraph (b) and insert—
  "(b) where in any other case it is shown that the offender was in charge of a motor vehicle on a road or other
  106 Page 56, line 16, at end insert:

  "LICENSING ACT 1872 (c. 94)

  Offences under the first paragraph of section 12 (being found drunk in a highway or other public place).

  Section 12 (as amended by section 1 of the Penalties for Drunkenness Act 1962).

  £5.

  £25.

  MERCHANT SHIPPING ACT 1894 (c. 60)

  Offences under the following provisions—

  Section 287 (as amended by section 1 of the Penalties for Drunkenness Act 1962).

  £5.

  £25.

  section 287(1)(a) (attempting to board a steamer while drunk or disorderly);

  section 287(1)(b) (refusing to leave a steamer while drunk or disorderly).

  LICENSING ACT 1902 (c. 28)

  Offences under section 2(1) (being drunk in a highway or other public place while in charge of a child).

  Section 2(1) (as amended by section 1 of the Penalties for Drunkenness Act 1962).

  £10.

  £50."

  107 Page 46, line 27, at end insert:

  "Offences under section 49 (newspaper reports of proceedings in juvenile courts).

  Section 49(2).

  £50.

  £500."

  108 Page 51, line 32, column 4, leave out "£50" and insert "£200".
  109 Page 58, line 12, at end insert:

  "Any offence consisting in a contravention of section 67 of Schedule 3 (interference with valve or apparatus).

  Section 67 of Schedule 3.

  £5.

  £200."

  110 Page 58, line 18, at end insert:

  "Any office consisting in a contravention of section 33 of Schedule 4 (causing the supply of water to be intered with).

  Section 33 of Schedule 4.

  £5.

  £200."

  111 Page 59, line 8, at end insert:

  "AGRICULTURE (SCOTLAND- ACT 1948 (c. 45)

  Offences under section 50(1) (prohibition of night shooting and use of spring traps).

  Section 50(2)).

  £20 for a first offence and £50 for a second or subsequent offence.

  £200

  Offences under section 50A(1) (open trapping of hares and rabbits).

  Section 50A(2).

  £20 for a first offence and £50 for a second or subsequent offence.

  £200."

  112 Page 61, line 9, at end insert:

  "FOOD AND DRUGS ACT 1955 (4 & 5 ELIZ. 2) (c. 16)

  Offences under section 55(1) (selling specified articles near a market in market hours without a hawker's licence).

  Section 55(1) (as amended by Schedule 3 to the Criminal Justice Act 1967).

  £10.

  £50."

  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 73 to 112 en bloc.

  COMMONS AMENDMENTS
  113 Page 61, line 14, at end insert—

  "HIGHWAYS ACT 1959 (s. 25)

  Offences under section 119(3) (failure to make good the surface of a public path after ploughing).

  Section 119(4)(b)

  £50.

  £200."

  public place, 3 months or £500, or both."
  104 Schedule 2, page 47, leave out lines 6 and 7.
  105 Schedule 3, page 49, leave out lines 11 and 12.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Harris of Greenwich.)
  AS AMENDMENTS TO COMMONS AMENDMENT No. 113
  113A Line 2, column 1, leave out ("119(3)") and insert ("119(4)(b)")
  113B Line 2, column 2, at end insert ("(as amended by Schedule 3 to the Criminal Justice Act 1967)")
  AMENDMENTS TO THE BILL, CONSEQUENTIAL ON COMMONS AMENDMENT No. 113
  113C Page 75, line 23, at end insert ("Highways Act 1959")
  113D Page 94, line 2, column 3, after ("1953") insert ("section 119(4)(b) of the Highways Act 1959")
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 113. At the same time I should like to speak to Amendments Nos. 113A, 113B, 113C and 113D. Amendment No. 113 which was accepted in another place at Report stage increased the maximum fine for failing to make good a public park after ploughing from £50 to £200. This is a relatively modest increase in the maximum fine for an offence which can cause great concern to ramblers. The maximum fine was last

  COMMONS AMENDMENTS
  114 Page 62, line 23, at end insert—

  "Offences under section 174(2) (refusal of person who is drunk etc, to leave licensed premises on request).

  Section 174(2).

  £5.

  £25."

  115 Page 63, leave out lines 29 and 30 and insert—

  "Offences under the following prosions—

  Section 7(1).

  £100 for a first offence and £200 for a second or subsequent offence.

  £500."

  section 1(1) (prevention of unnecessary pain and distress to livestock); section 2(2) (breach of regulations with respect to welfare of livestock).

  116 Page 64, line 21, at end insert—

  " LATE NIGHT REFRESHMENT HOUSES ACT 1969 (c. 53)

  Offences under section 9(4) (refusal of person who is drunk, etc. to leave licensed late night refreshment house on request).

  Section 11(3).

  £5.

  £25."

  117 Page 65, line 7, at end insert—

  "POISONS ACT 1972 (c. 66)

  Any offence under section 8(1) (contravention of provisions of sections 1 to 7, other than section 6(4), or of the Poisons Rules).

  Section 8(1).

  £50.

  £500.

  Offences under section 6(4) (using title etc. falsely to suggest entitlement to sell poison).

  Section 6(4).

  £20.

  £50.

  Offences under section 9(8) (obstructing an inspector etc.).

  Section 9(8).

  £5.

  £50."

  increased in 1967. Although the Government were happy to accept this suggested increase, it is unfortunate that the Amendment as put down was defective in its drafting and Amendments Nos. 113A and 113B rectify the faults. Amendments Nos. 113C and 113D are consequential.
  Moved, That this House doth agree with Amendments Nos. 113A and 113B as Amendments to the Commons Amendment No. 113.—(Lord Harris of Greenwich.)
  The DEPUTY SPEAKER: The Question now is that this House doth agree with Amendments Nos. 113C and 113D.
  The DEPUTY SPEAKER: The Question now is that this House doth agree with the Commons in their Amendment No. 113, as amended.
  118 line 22, at end insert—

  "CONTROL OF POLLUTION ACT 1974 (c. 40)

  Offences under section 78(1) (burning insulation from a cable).

  Section 78(2) (as substituted by the Clean Air Enactments (Repeals and Modifications) Regulations 1974).

  £400.

  £1,000."

  119 at end insert—

  "CRIMINAL PROCEDURE (SCOTLAND) ACT 1975 (c. 21)

  Offences under section 169(2) (publishing any matter in contravention of a direction by the court under section 169(1)).

  Section 169(2).

  £50.

  £500.

  Offences under section 365(2) (publishing any matter in contravention of a direction by the court under section 365(1)).

  Section 365(2).

  £50.

  £500.

  Offences under section 374(4) (publishing any matter in contravention of section 374).

  Section 374(4).

  £50.

  £500."

  120 After Schedule 6, insert the following new Schedule—

  SCHEDULE TRANSFER OF FINE ORDERS
  England and Wales
  1.— For sections 72A and 72B of the Magistrates' Courts Act 1952 there shall be substituted:—
  "Transfer of fines to Scotland or Northern Ireland
  72A.—(1) Where a magistrates' court has, or is treated by any enactment as having, adjudged a person by a conviction to pay a sum, and it appears to the court that he is residing

  (a) within the jurisdiction of a court of summary jurisdiction in Scotland, or

  (b) in any petty sessions district in Northern Ireland,

  the court may order that payment of the sum shall be enforceable by that court of summary jurisdiction or, as the case may be, in that petty sessions district.
  (2) An order under this section shall specify the court of summary jurisdiction by which or petty sessions district in which payment of the sum in question is to be enforceable; and if—

  (a) that sum is more than £100 or is a fine originally imposed by the Crown Court or the sheriff court, and

  (b) payment is to be enforceable in Scotland,

  the court to be so specified shall be the sheriff court.
  (3) Where an order is made under this section with respect to any sum, any functions under this Part of this Act relating to that sum which, if no such order had been made, would have been exercisable by the court which made the order or by the clerk of that court shall cease to be so exercisable.
  "Transfer of fines from Scotland to Northern Ireland
  72B.—(1) Where a transfer of fine order under section 403 of the Criminal Procedure (Scotland) Act 1975 or section 104A of the Magistrates' Courts Act (Northern Ireland) 1964 provides that payment of a sum shall be enforceable in a specified petty sessions area in England and Wales, a
  532
  magistrates' court acting for that area, and the clerk of that court, shall, subject to the provisions of this section, have all the like functions under this Part of this Act in respect of the sum (including power to make an order under section 72 or section 72A of this Act) as if the sum were a sum adjudged to be paid by a conviction of that court and as if any order made under the said Act of 1975 or, as the case may be, 1964 in respect of the sum before the making of the transfer of fine order had been made by that court.
  (2) For the purpose of determining the period of imprisonment which may be imposed under this Act in default of payment of a fine originally imposed by a court in Scotland, Schedule 3 to this Act shall have effect as if for the Table set out in paragraph 1 there were substituted the Table set out in section 407(1) of the Criminal Procedure (Scotland) Act 1975.
  (3) Where a transfer of fine order under section 403 of the Criminal Procedure (Scotland) Act 1975 or section 104A of the Magistrates' Courts Act (Northern Ireland) 1964 provides for the enforcement in a petty sessions area in England and Wales of a fine originally imposed by the Crown Court, a magistrates' court acting for that area shall have all the like functions under this Part of this Act, exercisable subject to the like restrictions, as if it were the magistrates' court by which payment of the fine fell to be enforced by virtue of section 32(1) of the Powers of Criminal Courts Act 1973, and as if any order made under the said Act of 1975 or, as the case may be, 1964 in respect of the fine before the making of the transfer of fine order had been made by that court."
  Scotland
  2.—(1) Section 403 of the Criminal Procedure (Scotland) Act 1975 shall be amended as follows.
  (2) In subsection (1)—

  533

  (a) at the end of paragraph (b) there shall be inserted the words ", or (c) in any petty sessions district in Northern Ireland,";

  (b) the words "if no term of imprisonment has been fixed by the court in default of payment of the fine" shall be omitted; and

  (c) after "petty sessions area" there shall be inserted the words "or petty sessions district".

  had been made, would have been exercisable by the court which made the order or by the clerk of that court shall cease to be so exercisable.
  "Transfer of fines from elsewhere in United Kingdom
  104B.—(1) Where a transfer of fine order under section 72A of the Magistrates' Courts Act 1952 or section 403 of the Criminal Procedure (Scotland) Act 1975 provides that payment of a sum shall be enforceable in a petty sessions district in Northern Ireland, a court of summary jurisdiction acting for that district and the clerk of that court shall, subject to subsection (2), have all the like functions under any statutory provision in respect of the sum (including power to make an order under section 104A) as if the sum were a sum adjudged to be paid by a conviction of that court and as if any order made under the said Act of 1952 or, as the case may be, 1975 in respect of the sum before the making of the transfer of fine order had been made by that court.
  (2) Where a transfer of tine order under section 72A of the Magistrates' Court Act 1952 or section 403 of the Criminal Procedure (Scotland) Act 1975 provides for the enforcement of a fine originally imposed by the Crown Court, the term of imprisonment which may be imposed under this Act shall be—

  (a) the term fixed in pursuance of section 31 of the Powers of Criminal Courts Act 1973 by the Crown Court, or

  (b) a term which bears the same proportion to the term so fixed as the amount of the fine remaining due bears to the amount imposed by that court,

  notwithstanding that the term exceeds the period applicable to the case under Schedule 4."'.
  121 Insert the following new Schedule:
  "SCHEDULE
  TRANSFER OF REMAND HEARINGS
  1. A court which, on adjourning a case, makes an order under section (Transfer of remand hearings) (1) above is not required at that time to fix the time and place at which the case is to be resumed but shall do so as soon as practicable after the order ceases to be in force.
  (3) In subsection (2) after the words "petty sessions area" there shall be inserted the words "or petty sessions district".
  (4) In subsection (4)—
  534

  (a) for the words from "within" to "Magistrates' Courts Act 1952" there shall be substituted the words "under this section, section 72A of the Magistrates' Courts Act 1952 or section 104A of the Magistrates' Courts Act (Northern Ireland) 1964"; and

  (b) for the words "or the said Act of 1952" there shall be substituted the words ", the said Act of 1952 or the said Act of 1964".

  (5) Subsection (5) shall cease to have effect.
  (6) In subsection (6) after the words "section 72A of the Magistrates' Courts Act 1952" there shall be inserted the words "section 104A of the Magistrates' Courts Act (Northern Ireland) 1964".
  Northern Ireland
  3. After section 104 of the Magistrates' Courts Act (Northern Ireland) 1964 there shall be inserted:—

  104A.—(1) Where a magistrates' court has, or is treated by any statutory provision as having, adjudged a person by a conviction to pay a sum and it appears to the court that he is residing—

  (a) in any petty sessions area in England and Wales, or

  (b) within the jurisdiction of a court of summary jurisdiction in Scotland,

  the court may order that payment of the sum shall be enforceable in that petty sessions area or, as the case may be, by that court of summary jurisdiction.

  (2) An order under this section shall specify the petty sessions area in which or the court by which payment of the sum in question is to be enforceable; and if—

  (a) that sum is more than £100 or is a fine originally imposed by the Crown Court or the sheriff court, and

  (b) payment is to be enforceable in Scotland,

  the court to be so specified shall be the sheriff court.

  (3) Where an order is made under this section with respect to any sum, any functions under any statutory provision relating to that sum which, if no such order

  2. Where an order under subsection (1) of section (Transfer of remand hearings) above is made in the course of proceedings which, for the purposes of section 3 of the Criminal Justice Act 1967 (reporting restrictions and their removal), are committal proceedings, proceedings relating to the accused before the alternate court are also committal proceedings for those purposes.
  3. A court making an order under subsection (1) of section (Transfer of remand hearings) above or remanding the accused under subsection (4) shall at once notify the court before which the accused is to be brought as to the terms of the order or remand.
  4. A person to whom an order under section (Transfer of remand hearings) (1) above applies shall, if released on bail, be bailed to appear before the court which made the order.
  5. Section (Transfer of remand hearings) above and this Schedule have effect notwithstanding anything in sections 6 and 14 of the Magistrates' Courts Act 1952 or section 19(4) above."
  122 Insert the following new Schedule:

  SCHEDULE
  MATTERS ANCILLARY TO SECTION (Prison sentence partly served and partly suspended) Probation orders
  1. Where a court makes an order under section (Prison sentence partly served and partly suspended) (1) above with respect to a sentence of imprisonment, it shall not make a probation order in the offender's case in respect of another offence of which he is convicted by or before that court, or for which he is dealt with by that court.
  Courts competent to restore sentence held in suspense
  3.—(1) In relation to a sentence of imprisonment part of which is held in suspense, the courts competent under section (Prison sentence partly served and partly suspended) (3) above are—

  (a) the Crown Court; and

  (b) where the sentence was passed by a magistrates' court, any magistrates court before which the offender appears or is brought.

  (2) Where an offender is convicted by a magistrates' court of an offence punishable with imprisonment and the court is satisfied that the offence was committed during the whole period of a sentence passed by the Crown Court with art order under section (Prison sentence partly served and partly suspended) (1) above—

  (a) it may, if it thinks fit, commit him in custody or on bail to the Crown Court; and

  (b) if it does not, it shall give written notice of the conviction to the appropriate officer of that court.

  (3) For the purposes of this and the next following paragraph, a sentence of imprisonment passed on an offender with an order under section (Prison sentence partly served and partly suspended) (1) above shall be treated as having been passed (with such an order) by the court which originally sentenced him.
  Recall of offender on re-conviction
  3.—(1) If it appears to the Crown Court, where that court has jurisdiction in accordance with sub-paragraph (2) below, or to a justice of the peace having jurisdiction in accordance with that subparagraph that an offender has been convicted in Great Britain of an offence punishable with imprisonment committed during the whole period of a sentence passed with an order under section (Prison sentence partly served and partly suspended) (1) above and that he has not been dealt with in respect of the part of the sentence held in suspense, that court or justice may, subject to the following provisions of this paragraph, issue a summons requiring the
  536
  offender to appear at the place and time specified therein, or a warrant for his arrest.
  (2) Jurisdiction for the purposes of subparagraph (1) above may be exercised—

  (a) if the sentence was passed by the Crown Court, by that court;

  (b) if it was passed by a magistrates' court, by a justice acting for the area for which that court acted.

  (3) Where an offender is convicted by a court in Scotland of an offence punishable with imprisonment and the court is informed that the offence was committed during the whole period of a sentence passed in England and Wales with an order under section (Prison sentence partly served and partly suspended) (1) above, the court shall give written notice of the conviction to the appropriate officer of the court by which the original sentence was passed.
  (4) Unless he is acting in consequence of a notice under sub-paragraph (3) above, a justice of the peace shall not issue a summons under this paragraph except on information and shall not issue a warrant under this paragraph except on information in writing and on oath.
  (5) A summons or warrant issued under this paragraph shall direct the offender to appear or to be brought before the court by which the original sentence of imprisonment was passed.
  Miscellaneous (procedural)
  4. Where the offender is before the Crown Court with a view to the exercise by that court of its powers under section (Prison sentence partly served and partly suspended) (3) above, any question whether and, if so, when he has been convicted of an offence shall be determined by the court and not by the verdict of a jury.
  5. Where the offender has been before a court with a view to its exercising those powers, the appropriate officer shall—

  (a) if the court decided not to exercise the powers, record that fact; and

  (b) whether or not it exercised them, notify the appropriate officer of the court which passed the original sentence as to the manner in which the offender was dealt with.

  6. For the purposes of any enactment conferring rights of appeal in criminal cases, the restoration by a court under section (Prison sentence partly served and partly suspended) (3) above of a part of a sentence held in suspense shall be treated as a sentence passed on the offender by that court for the original offence, that is to say the offence for which the original sentence was passed with an order under section (Prison sentence partly served and partly suspended) (1) above.
  Miscellaneous (consequential)
  7. Where a sentence of imprisonment is passed with an order under section (Prison sentence partly served and partly suspended) (1) above, it is still to be regarded for all purposes as a sentence of imprisonment for the term stated by the court, notwithstanding that part of it is

  537
  held in suspense by virtue of the order; and, for the avoidance of doubt, a sentence of which part is held in suspense by virtue of such an order is not to be regarded as falling within the expression "suspended sentence" for the purposes of any legislation, instrument or document.
  8. Where an offender is sentenced to imprisonment with an order under section (Prison sentence partly served and partly suspended) above and, having served part of the sentence in prison, is discharged under section 25(1) of the Prison Act 1952 (remission for industry and good conduct), the remainder of the sentence being held in suspense, the sentence is not to be regarded as expiring under that section.
  9. In section 21 of the Firearms Act 1968 (prohibition on possession of firearms by persons previously convicted of crime), after subsection (2) there shall be inserted—
  "(2A) For the purposes of subsection (2) above, 'the date of his release', in the case of a person sentenced to imprisonment with an order under section (Prison sentence partly served and partly suspended) (1) of the Criminal Law Act 1977, is the date on which he completes service of so much of the sentence as was by that order required to be served in prison".
  10. In section 67 of the Criminal Justice Act 1967 (computation of sentence where offender has been previously in custody), in subsection (1), after "arose, but" there shall be inserted "(a)", and at the end of that subsection there shall be inserted—
  "(b) in the case of a person sentenced to imprisonment with an order under section (Prison sentence partly served and partly suspended) of the Criminal Law Act 1977, this subsection operates to reduce the part of the sentence ordered to be served in prison, but not any part held in suspense and restored under subsection (3) of that section".
  11. In section 1 of the Rehabilitation of Offenders Act 1974 (general principle as to rehabilitation when convict ion is spent), after subsection (2) there shall be inserted—
  "(2A) Where in respect of a conviction a person has been sentenced to imprisonment with an order under section (Prison sentence partly served and partly suspended) (1) of the Criminal Law Act 1977, he is to be treated for the purposes of subsection (2) above as having served the sentence as soon as he completes service of so much of the sentence as was by that order required to be served in prison".
  123 Page 67, line 8, after "with" insert "(i)".
  124 Page 67, line 9, leave out "with" and insert "(ii)".
  125 Page 67, line 11, leave out "with" and insert "(iii)".
  126 Page 67, line 17, leave out "not mentioned in the preceding paragraph" and insert "(whether or not involving the death of a person other than the deceased)".
  127 Page 67, line 19, after "deceased", insert "not being art offence within paragraph (a)(i), (ii) or (iii) above".
  128 Page 68, line 13, leave out from "proceedings" to end of line 20 and insert—
  "(b) the coroner shall, after the termination of the inquest, furnish the registrar of deaths with a certificate under his hand stating the result of the relevant criminal proceedings; and
  (c) the provisions of paragraph (3) of section 18 of the Coroners Act 1887 and section 23(1) of the Births and Deaths Registration Act 1953 (duty of coroner to send registrar certificate containing information as to death and finding of inquest) shall not apply in relation to that inquest".
  129 Schedule 8, page 71, line 26, at end insert—

  "(1A) This subsection applies to the following enactments (by virtue of which certain byelaws may make persons contravening the byelaws liable on summary conviction to a fine not exceeding £20), namely—

  (a) section 203 of the Local Government (Scotland) Act 1973 (offences against byelaws) but (the provisions of section 462(11) of this Act notwithstanding) not that section as applied to byelaws made under any provision contained in a local or private Act other than by a local authority; and

  (b) paragraph 5 of Schedule 6 to the Weights and Measures Act 1963 (byelaws about solid fuel), including that paragraph as extended to wood fuel by paragraph 4 of Part IV of Schedule 7 to that Act.

  (1B) In the enactments to which subsection (1A) above applies for any reference to £20 there shall be substituted a reference to £50; and any provision in force at the coming into force of this subsection which—

  (a) is contained in any byelaw made by virtue of any enactment to which subsection (1A) above applies; and

  (b) specifies £20 as the maximum fine which may be imposed on summary conviction in respect of a contravention of, or offence under, any byelaw mentioned in that provision,

  shall have effect as if it specified £50 instead (but with no change by virtue of this subsection in the maximum daily fine, if any, for which it provides).".

  130 Page 73, line 26, at end insert—
  "7A. In section 397(1) for the words 'or under section 72A of the Magistrates' Courts Act 1952' there shall be substituted the words ', under section 72A of the Magistrates' Courts Act 1952 or under section 104A of the Magistrates' Courts Act (Northern Ireland) 1964'.".
  131 Page 74, line 18, leave out from "under" to end of line 32.
  132 Page 75, line 13, at end insert—

  Licensing Act 1872

  Licensing Act 1902

  133 Page 75, line 22, at end insert "Food and Drugs Act 1955"
  134 Page 75, line 30, at end insert "Late Night Refreshment Houses Act 1969"
  135 Schedule 9, page 75, line 33, at end insert—
  "NIGHT POACHING ACT 1928 (c. 69)
  1. In section 2 (assaults by persons committing offences under the Act), for the words from 'whether it be' onwards substitute 'be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding £500, or to both'.
  2. In section 9 (entering land, with others, armed and for the purpose of taking or destroying game or rabbits), for the words from 'at the discretion of the court' onwards substitute 'on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding £500, or to both.'."
  136 Schedule 9, page 75, line 46, at end insert—
  "EXPLOSIVE SUBSTANCES ACT 1883 (c.3)
  In section 3(1) (attempt to cause explosion, or making or keeping explosive, with intend to endanger life or property in the United Kingdom or the Republic of Ireland), for 'a term not exceeding twenty years' substitute 'life'.".
  137 Page 76, line 29, at end insert—
  "REPRESENTATION OF THE PEOPLE ACT 1949 (c. 68)
  In section 149(9) (procedure where person prosecuted before an election court subsequently attends or is brought before a magistrates' court)—

  (a) in paragraph (b), for 'hear' substitute 'try'; and

  (b) after that paragraph add 'and sections 19 to 26 of the Criminal Law Act 1977 shall (in either case) not apply.'.".

  138 Page 78, line 32, at end insert—
  "BIRTHS AND DEATHS REGISTRATION ACT 1953 (c. 20)
  In section 29(4) (correction of error in register resulting from error in information given by a coroner's certificate), for the words preceding 'the coroner, if satisfied' substitute—
  (4) where—

  (a) an error of fact or substance (other than an error relating to the cause of death) occurs in the information given by a coroner's certificate concerning a dead body upon which or a death touching which he has held an inquest; or

  (b) such an error relating to the cause of death occurs in the information given by a coroner's certificate issued under section 20(4) of the Coroners (Amendment) Act 1929 in the case of an inquest which was adjourned in compliance with section 20(1) of that Act (adjuornment in cases of murder etc. or at request of D.P.P.) but was subsequently resumed,'.".

  139 Page 78, line 32, leave out lines 34 to 36 and insert—

  "1. A prosecution for an offence to which paragraph 14 or 15 (incest and attempts thereat) of Part II of Schedule 2 table of offences with mode of prosecution) relates shall not be commenced except by
  540
  or with the consent of the Director of Public Prosecutions; and accordingly in sub-paragraph (a) and (b) of each of those paragraphs, in the second column, for the words from 'without' to 'behalf' substitute 'except by or with the consent'.

  2. In paragraphs 17 and 18 of the said Part II (indecent assault)—".

  140 Page 78, line 44, at end insert—
  "ADOPTION ACT 1958 (7 & 8 Eliz. 2. c. 5.)
  In section 50 (prohibition of certain payments), after subsection (3) insert:—
  '(3A) This section does not apply to—

  (a) any payment made by an adoption agency to a person who has applied or proposes to apply to a court for an adoption order or an order under section 53 of this Act (provisional adoption orders), beng a payment of or towards any legal or medical expenses incurred or to be incurred by that person in connection with the application; or

  (b) any payment made by an adoption agency to another adoption agency in consideration of the placing of a child in the actual custody of any person with a view to the child's adoption; or

  (c) any payment made by an adoption agency to a voluntary organisation for the time being approved for the purposes of this paragraph by the Secretary of State as a fee for the services of that organisation in putting that adoption agency into contact with another adoption agency with a view to the making of arrangements between the adoption agencies for the adoption of a child,

  and never has applied to payments of the kinds mentioned in paragraphs (a) and (b) of this subsection.
  In paragraph (c) of this subsection
  "voluntary organisation" means a body, other than a public or local authority, the activities of which are not carried on for profit.'".
  141 Page 78, line 44, at end insert:
  "OBSCENE PUBLICATIONS ACT 1959 (c. 66)
  In section 3(3) (powers of search and seizure) at end add:
  'Provided also that this subsection does not apply in relation to any article seized under subsection (1) of this section which is returned to the occupier of the premises or, as the case may be, to the user of the stall or vehicle in or on which it was found'."
  142 Page 80, line 30, at end insert:
  "2. In section 169 (serving or delivering intoxicating liquor to or for consumption by persons under 18)—

  (a) in subsection (1) (which prohibits in licensed premises, licence holder or his servant from knowingly selling intoxicating liquor to a person under 18 or allowing such a person to consume it in a bar, and the licence

  541
  holder from knowingly allowing any person to sell it to a person under 18), for 'subsection (4)' substitute 'subsections (4) and (10)'; and

  (b) after subsection (9) add—

  '(10) Where, as regards any licensed premises, the holder of the licence is charged with an offence under subsection (1) of this section in a case in which it is proved or admitted that he did not personally have the knowledge required for the commission of the offence charged, he shall not be convicted of the offence on the basis of anothor's knowledge if he proves that he exercised all due diligence to avoid the commission of an offence under that subsection.'".
  143 Page 82, line 14, at end insert:
  "1A. In section 22, as amended by paragraph 37 of Schedule 2 to the Bail Act 1976 (extension of power of High Court to grant, or vary conditions of, bail)—

  (a) in subsections (1) and (2) for 'inferior court' substitute 'magistrates' court'; and

  (b) in subsection (4) omit '"inferior court" means a magistrates' court or a coroner and'.".

  144 Page 82, line 14, at end, insert:
  "1B. In section 23(2) (requirements as to bringing before a justice of the peace or court a person arrested after admission to bail), after paragraph (b) insert—
  'In reckoning for the purposes of this subsection any period of twenty-four hours, no account shall be taken of Christmas Day, Good Friday or any Sunday.'".
  145 Page 82, line 35, at end insert—
  "2A. In section 44(5) (restrictions on magistrates' court's power to issue a warrant of commitment for a default in paying a sum adjudged to be paid by conviction), for paragraph (b) substitute—
  '(b) the court—

  (i) is satisfied that the default is due to the offender's wilful refusal or culpable neglect; and

  (ii) has considered or tried all other methods of enforcing payment of the sum and it appears to the court that they are inappropriate or unsuccessful.'".

  146 Page 85, line 11, at end insert—
  "6. In section 91 (Drunkenness in a public place) omit subsection (5)."
  147 Page 85, line 11, at end insert—
  "COMPANIES ACT 1967 (c. 81)
  1. In section 49(1) (certain offences to be triable summarily), after 'triable' insert 'only'.
  2. Paragraph 1 above shall be deemed to have had effect as from the passing of the Companies Act 1967.".
  148 Page 85, line 50, at end insert—
  "GAMING ACT 1968 (c. 65)
  In section 8(7) (offences) for 'section 67' substitute 'section 68'
  149 Page 86, line 1, at end insert—
  "Al.—(1) Section 12 (power to include
  542
  requirements in supervision orders) shall be amended as follows.
  (2) In subsection (2) (directions which order may empower supervisor to give), omit paragraph (a) (directions to live for a single period at a place specified by the supervisor) and for 'paragraph (a) or (b) or paragraph (a) and (b)' substitute 'paragraph (b)'.
  (3) In subsection (3) (restrictions as to periods specified in supervisor's directions)—

  (a) for paragraph (a) substitute—

  '(a) the aggregate of the periods specified in directions given by virtue of that subsection shall not exceed ninety days or such shorter period, if any, as the order may specify for the purposes of this paragraph;'

  (b) omit paragraphs (b), (c) and (d) and, in paragraph (e), the words from 'and if' onwards.".

  150 Page 86, line 5, at end insert—

  "1A. In Section 15(1) (variation and discharge of supervision order where supervised person is under the age of eighteen) for the words from 'twelve months' to 'with that date' substitute 'three months beginning with the date when the order was originally made', and omit 'in either case'.

  1B. In section 16(10) (meaning of attendance centre order' etc. for the purpose of section 15(4)(a))

  (a) after 'In', where it first occurs, insert paragraph (b) of subsection (2A) and';

  (b) for 'that paragraph' substitute 'each of those paragraphs';

  (c) for section 15(4) substitute 'section 15(2A) or (4)'.".

  151 Page 86, line 9, at end insert—
  "3. Paragraphs A1 and 1A above, and any related repeal provided for in Schedule 10 to this Act, shall not apply in relation to supervision orders made before the coming into force of those paragraphs.".
  152 Page 86, line 9, at end insert—
  "ROAD TRAFFIC ACT 1972 (c. 20)
  1. In section 179 (restrictions in prosecutions for certain offences), in subsection (1) (offences to which section applies), after paragraph (a) insert —
  '(aa) any offence under subsection (4) of section 13 of the Road Traffic Regulation Act 1967 (traffic regulation on special roads) consisting of failure to observe a speed limit imposed by regulations under that section; and'.
  2. In Part I of Schedule 4 (prosecution and punishment of offences), in column 7 (additional provisions)—

  (a) in the entry relating to section 3, for '4' substitute '3A, 4, 5';

  (b) in the entry relating to section 18, after 'paragraphs' insert '3A'.

  3.—(1) Part IV of Schedule 4 (supplementary provisions as to prosecution, trial and punishment of offences) shall be amended as follows.
  (2) After paragraph 3 insert the following paragraph—
  '3A.—(1) Where on a person's trial on indictment in England or Wales for an offence under section 1, 2, or 17 the jury find him not guilty of the offence specifically charged in the indictment, they may (without prejudice to section 6(3) of the Criminal Law Act 1967) find him guilty—

  (a) if the offence so charged is an offence under section 1 or 2, of an offence under section 3; or

  (b) if the offence so charged is an offence under section 17, of an offence under section 18.

  (2) The Crown Court shall have the like powers and duties in the case of a person who is by virtue of this paragraph convicted before it of an offence under section 3 or 18 as a magistrates' court would have had on convicting him of that offence.'.
  (3) In paragraph 5 (by virtue of which, on a prosecution on indictment for an offence to which section 179 does not apply, subsection (2) of that section does not prejudice any power of the jury to find him guilty of an offence under section 2)—

  (a) after 'apply', insert 'or (if that section does not apply) as regards which the requirement of section 179(2) has been satisfied, or does not apply,';

  (b) after 'section 2', add 'or 3 '.".

  153 Page 86, line 9, line 14, at end insert:
  "1. In section 34(1) (power of constable to take drunken offender to a place approved by the Secretary of State as a medical treatment centre for alcoholics), omit 'medical'.".
  154 Page 86, line 17, leave out "twenty-one" and insert "twenty-eight".
  155 Page 87, line 50, at end insert:
  "4. In section 15(2) (period within which work under a community service order is to be performed), at the end add'; but, unless revoked, the order shall remain in force until the offender has worked under it for the number of hours specified in it.'."
  156 Page 90, line 31, at end insert:
  "ADOPTION ACT 1976 (c. 36)
  1. In section 28(8), for 'subsection (6)' substitute 'subsection (7)'.
  2. In section 57 (prohibition of certain payments), after subsection (3) insert—
  '(3A) This section does not apply to—

  (a) any payment made by an adoption agency to a person who has applied or proposes to apply to a court for an adoption order or an order under section 55 (adoption of children abroad), being a payment of or towards any legal or medical expenses incurred or to be incurred by that person in connection with the application; or

  (b) any payment made by an adoption agency to another adoption agency
  544
  in consideration of the placing of a child in the actual custody of any person with a view to the child's adoption; or

  (c) any payment made by an adoption agency to a voluntary organisation for the time being approved for the purposes of this paragraph by the Secretary of State as a fee for the services of that organisation in putting that adoption agency into contact with another adoption agency with a view to the making of arrangements between the adoption agencies for the adoption of a child.

  In paragraph (c) "voluntary organisation" means a body, other than a public or local authority, the activities of which are not carried on for profit.'."
  157 Page 90, line 34, at end insert—
  "2. In section 3(8) (power of court granting bail to vary conditions of bail or impose conditions in respect of bail (granted unconditionally)—

  (a) for 'it may' substitute 'that court or, where that court has committed a person on bail to the Crown Court for trial or to be sentenced or otherwise dealt with, that court or the Crown Court may'

  (b) for 'it was' substitute 'bail was'

  (c) for 'it has' substitute 'has been'.".

  158 Page 90, line 34, at end insert—
  "3. In section 7(4) (requirements as to bringing before a justice of the peace or court a person arrested after release on bail), after paragraph (b) insert—
  'In reckoning for the purposes of this subsection any period of 24 hours, no account shall be taken of Christmas Day, Good Friday or any Sunday.'."
  159 Page 90, line 34, at end insert—
  "4.—(1) Section 5 (supplementary provisions about bail) shall be amended as follows.
  (2) After subsection (8) insert—

  '(8A) An order under subsection (7) above shall, unless previously revoked, take effect at the end of twenty-one days beginning with the day on which it is made.

  (8B) A court which has ordered the forfeiture of a security under subsection (7) above may, if satisfied on an application made by or on behalf of the person who gave it that he did after all have reasonable cause for his failure to surrender to custody, by order remit the forfeiture or declare that it extends to such amount less than the full value of the security as it thinks fit to order.

  (8C) An application under subsection (8B) above may be made before or after the order for forfeiture has taken effect, but shall not be entertained unless the court is satisfied that the prosecution was given reasonable notice of the applicant's intention to make it.

  (3) After subsection (9) insert—
  '(9A) Where an order is made under subsection (8B) above after the order for forfeiture of the security in question

  545
  has taken effect, any money which would have fallen to be repaid or paid over to the person who gave the security if the order under subsection (8B) had been made before the order for forfeiture took effect shall be repaid or paid over to him'."
  160 Page 91, line 11, at end insert—

  "9 Geo. 4. c. 69.

  Night Poaching Act 1828.

  Sections 4 and 11.

  1 & 2 Will.4 c. 37.

  Truck Act 1831.

  Section 10."

  161 Page 91, line 35, at end insert—

  "5O&51 Vict. c. 46.

  Truck Amendment Act 1887.

  Section 13(1) and (3)."

  162 Page 92, line 5, column 3, leave out 'paragraph 2(3)' and insert 'paragraphs 2(3) and 3(1)'.
  163 line 11, at end insert—

  "12,13 & 14 Geo. 6 c. 101.

  Justices of the Peace Act 1949.

  Section43(3)."

  164 Page 92, line 13, column 3, at end insert—

  "Section 285(1)."

  165 Page 92, line 17, column 3, at end insert—

  "Section 102(3)."

  166 Page 92, line 25, column 3, at end insert—

  "In Schedule 3, paragraph 3.",

  167 Page 92, line 50, column 3, at beginning insert—

  "In the proviso to section 1(3), the words from 'a cinematograph exhibition' to 'in the course of'."

  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 114 to 167 en bloc.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Harris of Greenwich.)

  COMMONS AMENDMENT
  168 Page 92, line 55, column 3, leave out "Sections 3 and" and insert "Section".
  The Earl of MANSFIELD: My Lords, to move this Amendment might stick in the throat of the noble Lord, Lord Harris. I think that, faute de mieux, I had better move this Amendment. I beg to move that this House doth not agree with the Commons in their Amendment No. 168.
  546
  The reason is that this Amendment is consequential upon Amendment No. 165 upon which this House pronounced not so long ago.
  Moved, That this House doth not agree with the Commons in the said Amendment. —(The Earl of Mansfield.)
  Lord HARRIS of GREENWICH: My Lords, once again I am in total agreement with the noble Earl. The words would have stuck in my throat. I am grateful to him for moving the Amendment.

  COMMONS AMENDMENTS
  169 Page 93, line 9, at end insert—

  "10&11 Eliz.2. c. 52.

  Penalties for Drunkenness Act 1962.

  In section l(2)(a) the words from "the first paragraph of section twelve" to "1894".

  In section 1(2)(b) the words "section two of the Licensing Act 1902".

  170 Page 93, line 9, at end insert—

  "1963 c. 39.

  The Criminal Justice (Scotland) Act 1963.

  Section 26. In section 53(1), the entries relating to section 26 and Schedule 3.

  In Schedule 3, Part II."

  171 Page 93, line 18, at end insert—

  "1967 c. 1.

  Land Commission Act 1967.

  Section 82(5)."

  172 Page 93, line 38, column 3, at beginning insert 'In section 22(4) the words "'inferior court' means a magistrates' court or a coroner and".'.
  173 Page 93, line 44, column 3, at end insert "Section 91(5)."
  174 Page 93, line 45, column 3, at end insert "Section 93."
  175 Page 93, line 45, column 3, at end insert—

  "In section 106(2)(f) the words "the Summary Jurisdiction (Scotland) Act 1954,"."

  176 Page 93, line 46, column 3, after "In", insert "Part I of".
  177 Page 94, line 2, column 3, after '1953', insert 'section 55 of the Food and Drugs Act 1955,'.
  178 Page 94, line 5, column 3, at end insert—
  'In Part II of Schedule 3, the entry relating to the Public Health Act 1875.'.
  179 column 3, at end insert—

  "In Schedule 6, paragraphs 14 to 16 and 21."

  180 Page 94, line 6, column 3, leave out from '57(4),' to end of line 9 and insert 'the definition of "indictable offence",'.
  181 Page 94, line 35, column 3, at end insert—

  "In section 12, subsection (2)(a) and, in subsection (3), paragraphs (b) to (d) and, in paragraph (e), the words from "and if" onwards."

  182 Page 94, line 37, column 3, at end insert—

  "In section 15(1), the words "in either case"."

  183 Page 94, line 42, column 3, at beginning insert—"In Section 41(6)(a), the words from "and in" to "Scotland)" and the words "in each case'."
  184 Page 94, line 44, column 3, at end insert—

  "In paragraph 4 of Part I of Schedule 9, the words "or inquisition"."

  185 Page 94, line 45, column 3, at end inert—

  "In section 59(5'(e), the words from "and" in the first place where it occurs to the end."

  186 Page 94, line 47, leave out 'and in paragraph 34' and insert 'in paragraph 34(1)'.
  187 Page 94, line 48, column 3, at end add 'paragraph 34(3) and in paragraph 48(a) the words "14, 16, 21(c)"'.
  188 Page 95, line 13, column 3, at beginning insert—

  "In section 34(1) the word 'medical'"

  189 Page 95, line 27, column 3, at end insert—

  "Section 33".

  190 Page 95, line 49, at end insert—

  "In section 58(a), the word '33'".

  191 Page 95, line 58, at end insert—

  "In Schedule 5, paragraphs 6 and 8"

  192 Page 96, line 19, column 3, at end insert—

  "in Section 27(1) the words 'to the Magistrates' Courts Act 1952 and'.

  In Schedule 1, paragraph 26."

  193 Page 96, line 20, at end insert—

  "1975 c. 21.

  Criminal Procedure (Scotland) Act 1975.

  Section 17.

  Section 325.

  548

  In section 403(1), the words from "if" to "of payment of the fine".

  In Section 403(4) the words from "or that Table" to the end. Section 403(5).

  In section 463(1), in paragraph (a) the word "17", in paragraph (b) the words "325" and in paragraph (d) sub-paragraphs (i) and (iii).

  In Schedule 9, paragraphs 15 and 35."

  194 Page 96, line 26, column 3, after '4', insert 'in paragraph 37(4), the word "and" where it first occurs'.
  195 Schedule 11, page 97, line 13, at end insert 'section 30(2A) above, in'.
  196 Page 96, line 26, at end insert—
  '3A. Section (Alteration of maximum periods of imprisonment in default of payment of fines etc.), and any related repeal provided for in Schedule 10 to this Act, shall not apply to a term of imprisonment to be served by a defaulter which has been fixed or imposed before the commencement of that section.'.
  197 Page 96, line 28, after '29', insert or any provision mentioned in paragraph 3A above.'
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 169 to 197 en bloc.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Harris of Greenwich.)
  7.27 p.m.
  Lord HARRIS of GREENWICH: My Lords, I beg to move that this House do now adjourn during pleasure.
  House adjourned during pleasure.
  House resumed.

POST OFFICE BILL
7.37 p.m.
Lord WINTERBOTTOM: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, that the House do now resolve itself into Committee.—(Lord Winter-bottom.)
House in Committee accordingly.
[The LORD ALPORT in the Chair.]
Lord TREFGARNE Lord TREFGARNE moved Amendment No. 1:
Page 1, line 18, at end insert—
("(4) This Act shall come into force at the expiration of the period of six months beginning with the day on which it is passed.")
The noble Lord said: We have before us tonight a short Bill and, had it not been for the publication yesterday of the Carter Report, we may not have been involved in this Committee stage—at least with not the same vigour as I hope and believe we shall be. The purpose of the Bill is to facilitate an experiment in industrial democracy in the Post Office. Why the Post Office was selected it is not for me to say. However, the fact that they have a large majority of their employees in union membership may have been one factor in the Government's mind. The fact that it is a nationalised industry was no doubt another. Both those are good reasons.
The purpose of this Amendment, however, is to insert a new subsection at the end of Clause 1. I want to emphasise that it is not my intention, if the Committee is persuaded to agree to this Amendment, to delay the final passage of the Bill, let alone to kill it. I see no difficulty in this Bill, amended if that be your Lordships' wish, returning to the other place and for them to consider the amended Bill and return it to us before the end of the Session.
Lord WINTERBOTTOM: Is the noble Lord not moving to leave out Clause 1? Has that disappeared by now? Are we just talking about the starred Amendment?
Lord TREFGARNE: No. I apologise for not explaining that point. I was advised before the Committee stage began that the two Amendments were printed the wrong way round on the Marshalled List and that it was incumbent upon me to move the Amendment first. Then we will consider whether to include the clause, amended or otherwise. However, I should say in parenthesis that the fact that the two Amendments are to be considered in a different order will enable me to telescope my two speeches together.
550
I hope to cover most of the points that I would have made on the question of whether the clause shall stand part of the Bill in my speech now, and I will speak only formally—if at all—to the question whether the clause shall stand part of the Bill.
First, I hope to persuade the Government to reconsider the merits of this experiment. Secondly, I hope to persuade them to allow the House of Commons another opportunity to consider the principle of the Bill. We might be questioned as to why we should do this because the Bill has only latety been through all its stages in the Commons, and we had a Second Reading only last week when I spoke and did not indicate at that stage my intention to move an Amendment such as this. I wish to explain that only yesterday the Report of the Carter Committee was published and that report impinges directly upon the content of the Bill. It seemed to me and my colleagues that an Amendment such as this ought to be inserted in the Bill this evening. I was only just able to table an Amendment yesterday evening so that it could be printed for today.
With reference to the report of Mr. Carter's Committee, we have not yet heard the Government's conclusions. Indeed, I imagine that the Government have not yet reached any conclusions. Yesterday, the right honourable gentleman Mr. Kaufman gave a Written Answer to a very opportune Question about this report from Mr. Wrigglesworth. Mr. Wrigglesworth wanted to know what action it was proposed to take in this connection. The Written Answer no doubt will have been read by some of your Lordships, and one of the points made is that the issues raised in the report are to be considered both by Parliament and by the country as a whole, and a period of approximately six months is to be allowed for representations to be made to the Secretary of State in the Posts and Telecommunications Division of the Post Office. The Written Answer went some way towards telling us where the Government stood, and it was clear that they had reached no conclusion on the content of the report and its recommendations.
My objections to the scheme of industrial democracy now proposed by the Post

551
Office are objections not of principle but of detail. For example, I am anxious that the consultation procedures, and indeed the selection of worker-members, should apply equally to those employees of the Post Office who are not members of a union. I recognise that most Post Office employees are union members, but none the less about 10 per cent.—which is nearly 50,000 people—are not members of a union, and no provision is made in this experiment for consultation with them.
I am also concerned because it seems that consumer representation on the new Board is hardly adequate. Apparently there are to be only two consumer representatives out of 19 Board members, and we do not yet know how they are to be selected. I am equally concerned that there seems to be too much power vested in the Secretary of State, because he has to approve all the appointments to the new Post Office Board. However, as I have said, I would emphasise that these are objections of detail rather than of principle.
What of the Carter Report itself? It refers specifically to this legislation, and it does so in what can only be called derogatory and unsatisfactory terms. Apparently, the Committee members learned of the decision to introduce legislation only at a late moment in their deliberations, but nevertheless there was sufficient time for them to include their thoughts and comments in the report. I do not want to quote great tracts of what they have said, but if your Lordships care to refer to paragraphs 9.15 and 9.16 on page 68, you will see, from those paragraphs and others, that their views are very clear. For example, they say in paragraph 9.15:
"Had we been consulted, therefore, we would have recommended the Government to be cautious in encouraging developments in the superstructure of worker representation".
Later, they say:
"We are strengthened in the view that the action taken was not well considered".
There are many more quotations from subsequent paragraphs which f could use which are in a similar vein. So much for the timing question. I believe that an experiment in industrial democracy is desirable, particularly if it is an operation which is Well thought out and well timed; but I believe that neither of those descriptions can apply to this experiment.
552
I should now like to refer to the general points which, had we taken the point first, I would have raised on the Question, Whether the clause shall stand part of the Bill? By doing so at this point, I shall spare your Lordships having to listen to a second speech from me later in these proceedings. If, in the fullness of time, an experiment such as the Government have described, and broadly as they have indicated, comes to be tried in the Post Office, I am anxious to know what procedures are to be used to determine who shall be the five independent members of the Board. We are already aware that two of them are to be consumer representatives, but I am anxious to know how the five independent members are to be chosen and what part the Secretary of State will play in their selection.
We know that the worker representatives are to be chosen by the Post Office unions. I wonder whether or not the Government are satisfied that the procedures used by the Post Office unions to select their officials, which are the procedures to be used for selecting their Board representatives, are equally suitable for the new selection process. I would not, of course, normally wish to interfere in the internal electoral affairs of the Post Office unions while those procedures were confined to the election of union officials; but now they are to be used for the selection of members of the Post Office Board, and therefore I believe we are entitled to know what procedures the Post Office unions use—for example, whether secret ballots are involved, or whether there is some less satisfactory procedure such as procedures we have thought fit to criticise in the past from this side of the House. What procedures will be used to consult with those workers who are not members of a union but who constitute some 10 per cent. of the workforce of the Post Office which, as I said earlier, must be nearly 50,000 people?
I am also anxious to know the scale of salaries to be paid to these new part-time directors. Will they be in line with the recommendations of the Boyle Committee? After all, the noble Viscount, Lord Boyle, and his Committee recommended a scale of salaries some two years ago, and those salaries have not yet been implemented, even in part—
Lord BOYD-CARPENTER: If the noble Lord will allow me to say so,

553
he is understating the case: it is very nearly three years ago. These recommendations were made in December 1974.
Lord TREFGARNE: I am greatly obliged to my noble friend. I was anxious not to overstate the case, and in my anxiety I seem to have understated it. Then, it is clearly even more important that the Government should state quite clearly what part of the Boyle increase, which was due in 1974—never mind 1977—the new part-time directors will be paid and, if these salaries are to be restricted in any way, whether the Government are satisfied that they will be in a position to attract representatives of sufficient calibre.
May I now briefly return to the Amendment on the Marshalled List? I am firmly convinced that the proposals contained in the Bill are defective, and it is for that reason that I invite your Lordships to amend the Bill so that the other place may have a further opportunity to consider it. I would also say that, since the Government's proposals are diametrically opposed to the proposals contained in the Carter Committee's Report, which, as I said, was published only yesterday, the Government, too, ought to think again.
It is not possible to dismiss the Carter Committee's Report as anything other than good and reliable, particularly from the point of view of the trade unions. The membership of the Carter Committee included a distinguished representative from the trade union movement, a Mr. Buck, and there was no dissenting voice from him on any of the recommendations in the report. Furthermore, there were 10 or more trade union bodies which were consulted by the Carter Committee and whose views are no doubt contained in the final report. It is for those reasons that I invite your Lordships to include the Amendment that I have put on the Marshalled List. I beg to move.
7.52 p.m.
Lord PEDDIE: The noble Lord opposite has paid tribute to Professor Carter and his report dealing with the Post Office. I join him in that, and I believe that the report itself is deserving of commendation and of the most detailed study. I would not normally have participated in this
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debate—and in the not too distant future this House will probably have an opportunity to give far more detailed consideration to the whole question of the Carter Committee's report—but in effect, the noble Lord is inviting the Committee to reject the present proposal to increase the number on the Post Office Board, merely because of his support for the Carter proposals. I do not think that that in itself justifies the steps that he is asking the Committee to take.
He said that he has no objection in principle to the arguments advanced by this Bill or to its basic purpose, but he has some objections to the method. I ask him to consider what would be the effect if the Committee accepted his proposal, and if we were able to defer the operation of this Bill. At once, we would exacerbate the whole situation. We would create added difficulties, so far as the trade unions were concerned. We would throw it all into a state of turmoil. I may go along with most of his arguments, but I am concerned that this Bill lays down quite clearly that there is to be an experimental period of two years. Surely the Carter proposals and the operation of this Bill, when it becomes an Act, can run in parallel. We would gain from the experiment, at a time when the Carter proposals are being considered.
I am sure that no one in this Committee believes that there will be final decisions on the Carter proposals in the next six months. There will be a far longer period than that, and I would express no personal criticism if it were a longer period, because we are dealing with very fundamental matters which affect not only the Post Office but every nationalised industry. So I hope that the noble Lord opposite will withdraw his Amendment, because, although he is entitled to his point of view, it would worsen the situation. It would create added difficulties in the proper, fair, full and frank consideration of the Carter proposals.
This will be an experiment, and we must not throw a spanner into the works now, after discussions over a long period of time, and say, "No, we are going to stop it, because of Carter." Rightly or wrongly, the Government decided to go along with this idea when the Carter proposals were being formed. I share the view that that was probably a mistake, but it is

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now done and the whole Post Office situation could be worsened, and the whole relationship between the staff in the Post Office, the unions in the Post Office and even users of the Post Office, could be undermined if we adopted this suggestion.
While I have full sympathy with the noble Lord's point of view, which urges detailed consideration of the Carter proposals, I do not think this is the way to proceed. This could have very serious and difficult consequences, and could make it increasingly difficult for a fair consideration of the Carter proposals. Therefore, I sincerely hope, in the interests of the Post Office—which I know the noble Lord has at heart—that he will withdraw his Amendment. If it is not withdrawn, I sincerely hope that this House will reject it.
7.57 p.m.
Lord WINTERBOTTOM: The noble Lord, Lord Trefgarne, has argued that, since we now have the benefit of the Post Office Review Committee's thoughts on industrial democracy in the Post Office, we should postpone the implementation of the Bill for six months. While I think he is right to draw attention to the Committee's views on this subject, I think, for a number of reasons, that it would be profoundly undesirable to delay this experiment because the Carter Committee has taken a slightly different view of how it should work.
Let us consider the practical effects of this Amendment. It is the intention of the Government to appoint the members of the new Board as soon as possible after the Bill has been passed and the arrangements have been ratified by all the unions. We certainly hope to reach this situation in less than six months. If this Amendment were accepted, it would delay the procedure. Not only that, but if the experiment were to run for two years the period allowed at the end for review would be reduced. Surely, the importance of an experiment is in the analysis of its results.
The Amendment tonight will not stop the Bill from getting on to the Statute Book. All it will do is cut down the period of study of the results of the experiment, and such study is, perhaps, the object of the exercise. I am sure noble Lords will agree that to reduce this all-
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important period of review would be wholly undesirable; and I do not think it is the intention of the noble Lord, Lord Trefgarne, that this should be the case. These are the reasons why I think that the Amendment has grave practical disadvantages. But I recognise that the noble Lord's main concern is that we should allow time for reflection upon the recommendations of the Carter Committee, and it is to that point that I shall direct my attention.
First, I must make clear exactly why the Government did not wait for the report before introducing this Bill. The Post Office management and unions were considering the possibility of an experiment in industrial democracy even before the Carter Committee was appointed by the Government. I believe that the Committee's reaction to the decision to go ahead with the Bill was an overreaction. They must have known that the subject was under discussion when they started work. It was clear from an early stage that there were excellent prospects of management and unions reaching agreed proposals, and these were presented to the Government in February of this year.
Recognising the degree of commitment which lay behind these proposals, the Government were convinced that this would be a worthwhile experiment and that it would be most undesirable to risk losing momentum by delaying its start. To have waited for the publication of the Carter Report would have ruled out the possibility of any Bill this Session. The Government decided that the opportunity for an early experiment in industrial democracy in a major nationalised industry was not lightly to be cast aside, and the Government therefore decided that they should proceed with the Bill.
At this point I should like to thank my noble friend Lord Peddie for the very concise and important statement which he has made on the results of the Bill. He is quite right in saying that study of the Carter proposals and the experimental period during which the Bill will run can take place in parallel; the experiment and the consideration can go along side by side. With the interchange of information arising from the experiment, the final decisions on Carter will doubtless be a great deal better than if the experiment were not to take place.

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When we speak about delay, the noble Lord must remember the practicalities of the situation. If it is decided to implement Carter, the legislative load that will arise from it will be substantial. The Post Office Act 1969 is a massive document. It would have to be split into two and rewritten. I believe that it would be at least a two-year job before the Carter proposals could be introduced in the form of legislation. I beg the noble Lord—and, indeed, noble Lords on all sides of the House—to consider the disruption caused to the various parties concerned with the Bill, all of whom are now prepared to make it work, if suddenly they find that a period of unexpected delay is imposed upon them. It would cause a great deal of bitterness and concern and could be damaging in the future.
To underline the point that I am making, we are speaking here about a set of proposals which have been worked out by the Post Office management and the unions—the people who will be carrying out the experiment. The arrangements which they agreed upon, after long and detailed negotiations, represent, in the Government's view, a sensible and constructive approach to industrial democracy in the Post Office. They have been designed by those who have the closest possible familiarity with the needs of the Post Office—by people who have lived with the Post Office and not just looked at it. The Government believe that a scheme to which both sides are fully committed, as is the case with the Post Office, has the best possible chance of success.
There are areas of agreement between the proposals which are contained in the Bill and the decision as to how it should be implemented and the Carter Committee itself. The noble Lord has drawn attention to the views of the Carter Committee and has compared their ideas with the agreed proposals for the experiment. The Committee take the view that industrial democracy should start at the level of the Head Post Office or Telephone Area. As I understand it, they are speaking about organic industrial democracy, with which your Lordships' House is already familiar. The Government also believe that this experiment must not simply be restricted to the Board level arrangements which we have discussed. Indeed, my honourable
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friend the Minister of State said at the first tripartite meeting last July that
"representation on the Board does not of itself create industrial democracy. It must be much wider and extend to all levels of the enterprise".
At this moment it may be convenient to comment on the missing 10 per cent. which the noble Lord, Lord Trefgarne, would like to be consulted, although they are not in the unions. The percentage of employees in the Post Office unions is much nearer full representation than 90 per cent. When one takes the statistical picture on a given day, one finds that contained in the figures of employees there are a number of people who have just joined the Post Office and who have not yet got around to joining a union. At the other end of the scale there are the part-time workers who, by the very nature of their employment, are not desirous of joining a trade union. So of the established, full-time workers in the Post Office, the figure could be closer to 100 per cent. membership of the unions than to 90 per cent. That is the reason for the apparent gap between membership of the unions and the number of employees in the Post Office.
At this point may I draw the noble Lord's attention to paragraph 14 of the Joint Study Group Report, which is available in the Library of the House;
"The Joint Study Group has given priority consideration to the question of an experiment at the level of the Post Office Board because only at this level would new legislation be required. However, consideration is also being given to the Possible scope for extending industrial democracy at regional and local levels, and the parties have already agreed in principle to an experiment involving 'new style boards' at regional level".
Since their report was presented, the Joint Study Group have been devoting a great deal of attention to the arrangements below board level, and I understand that they have now reached agreement on all but the final details of the arrangements which will operate at local level. These will involve the establishment of joint area policy committees which will enable staff to participate in the formative stage of decision-making on policy and planning matters of local concern. This is precisely what the Carter Committee has recommended. It is not diametrically opposed to the Carter Committee's views, as the noble Lord has suggested. I may have misunderstood him, but I believe that is what the noble Lord said.

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Discussions of the arrangements for indistrial democracy at regional level are also well advanced, and I understand that the Post Office and unions hope that the participation structure covering all levels of the Post Office will be finalised and agreed soon. It was always intended that industrial democracy below Board level should form an integral part of the Post Office experiment, but priority consideration was given to the arrangements at Board level because it was clear that legislation would be required to implement the kind of scheme which the Post Office and unions had in mind. I would submit that this is a sensible course of action. It has meant that while the Bill was going through, management and unions could concentrate on the arrangements below Board level. Also, it made it possible for the full scheme to go ahead, without a long wait after it was finalised.
I have made a long speech because I am very deeply concerned that your Lordships should not accept this Amendment. We have before us a Bill which will allow to go ahead an experiment in industrial democracy in the Post Office, agreed by the Post Office management and the unions. I understand that the noble Lord, Lord Trefgarne, believes that we should hold it all up while we consider the report of the Carter Committee. I believe that this would be entirely wrong. We would delay an experiment with which the management and the unions are eager to proceed and which was welcomed by all sides in another place. Moreover, as I have said, the experiment is limited to two years, at the end of which it will be reviewed. That review will examine the report on the experiment and will also take account of the views expressed by the Carter Committee. Also, by that time the Government will probably have come to conclusions on the Carter Report as a whole, and will be in a position to examine the whole question of the structure of the Post Office.
All we are asked to do today is to allow this experiment to go ahead. During the Second Reading of the Bill, the noble Baroness, Lady Seear, drew attention to a remark I made about moving out of the theory of industrial democracy into its practice. She said, "It is a very murky theory". I submit that we must not allow this Post Office experiment to slide
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back into the murk of theory for another six months. For this reason, after replying to one or two of the points which have been made by the noble Lord, I shall ask your Lordships to reject this Amendment.
The noble Lord has very kindly said that in order to facilitate business he would ask me the question which he would have asked on what was to have been his first Amendment. I have answered the question about the missing 10 per cent. He started by saying: "We have not heard the conclusions of the Government on Carter", Of course not; it appeared last night and, although expressions of opinion have been asked for, it is quite clear that the Government will need substantial time to collect voices and then consider whether a consensus has been reached.
The noble Lord has expressed the view that consumer representation is not adequate; but we cannot overload the Board. I think it may be too big anyway and two individuals who, in the opinion of the Secretary of State, are qualified to speak for the consumer would, in my view, have sufficient power to influence the Board as a whole. The noble Lord has said that the power of the Secretary of State is excessive. I do not think it is; the powers of Secretaries of State in general may be regarded as excessive, but the power of the Secretary of State in this case is no different from that of a Secretary of State in any other nationalised industry, because it is the Secretary of State who is responsible to Parliament for the overall performance of an industry and for that reason he must be allowed to reach final decisions on the individuals who will in fact exercise power in his name for the successful operation of a major industry.
The noble Lord also asked questions about the procedures for the choice of the five independent members, including of course the consumer members, and I think I answered that in the Second Reading debate. He asked whether the Government were satisfied with the union procedures. The Government are satisfied; in fact the procedures are already in operation because one of the major unions has already reached its decisions on the basis of the existing procedures.
Lord TREFGARNE: Do the electoral procedures of the unions include provision for secret ballots?
Lord WINTERBOTTOM: The procedures which are going to be used are the ones that I mentioned on Second Reading. It may be the wish of the unions on certain occasions to use a secret ballot, but in this particular case some unions are using their established procedures for choosing union officials. It is absolutely clear; the noble Lord knows how it works, and we believe that because it starts at local branch level considerable power lies in the hands of the individual to be informed and then to express an opinion as to the type of man who will represent him on the Board of the Post Office after the National Executive of the unions has heard the views of its branch members.
Finally, turning to the question of salaries, I have nothing to add to what said in my Second Reading speech. Perhaps I could say it rather more clearly: the question of whether future salaries for full-time Board members will be sufficient to attract people of the calibre required is of course not specific to the Post Office experiment. The Government are aware of this problem and I am sure they will bear it in mind in reaching decisions on the report of the Top Salaries Review Body. It is a little early to decide on this matter.
I have tried to reply as best I can to a rather pungent idea injected into our discussions. I believe that whereas no one is questioning the noble Lord's view that perhaps a further period of thought might be valuable, nevertheless I believe, and I hope the Committee will support me in this, that a disruption caused by a sudden change of course at the last moment can only be extremely damaging to a circle of individuals and organisations far wider than the Post Office itself.
8.13 p.m.
Lord MOTTISTONE: I should like briefly to support my noble friend Lord Trefgarne and I will not repeat his arguments, with which I agree. I suggest to the Government that there is another reason why a delay of this sort—and I am not sure that six months is long enough—would be very wise in this important experiment. I hasten to add that to me this is a serious and worthwhile experiment which needs to be encouraged, but all the thinking and such experience as there has
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been so far in businesses of all sorts—and, after all, the Post Office is a business, and a very big one at that—is that one really must start the experiment from the lowest levels of the organisation and build it up to the top. I rather gather from the noble Lord, Lord Winterbottom, that there was at the same time a concurrent introduction of a Board at the top. All the evidence we have been able to gather in industry—and I have been looking into this for five years, and other people who are much more knowledgeable than I support it—is that you must get your roots thoroughly established before you bother with what happens at Board level.
It would seem to me, therefore, that there is every reason to delay the Board level experiment to make sure that the roots are properly established. This is neither the time nor the place to go into all the arguments about this and they are not superficial; they relate to such things as the difficult position of trade union members on top Boards retaining the authority within their union that they had before. They relate to the knowledge and experience required to run a big business, and such things as that. I rather feel that the Government rushed into this. They took the bull by the horns and rushed at it—at least that was the impression one got, although the noble Lord, Lord Winterbottom, is shaking his head. I should have thought there was for that reason a great deal to be said for the delay, coupled with the main one put forward by my noble friend, that the Carter Report, if it is effective in any way, will make in any case a major difference in the top management structure of the Post Office, and that it is at the lower levels, where the differences will not occur, where the ground work can be laid for a really solid experiment. I genuinely believe that in order to make a success of the experiment the Government would be wise to hesitate and think again about this Board level introduction. For that reason I support this Amendment very strongly indeed.
8.18 p.m.
Lord TREFGARNE: The noble Lord, Lord Winterbottom, answering most courteously, as he always does, the points that were made to him, said that in his view the delay would be damaging. The noble Lord, Lord Peddie, said that there

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would be union trouble, but I am not sure how that would arise. After all, if we succeed in including this Amendment in the Bill it will have to be approved by the other place; and I wonder whether the noble Lord, Lord Peddie, is saying that the unions would not be satisfied with anything passed by the other place. One of my most important purposes in moving this Amendment was to give the other place a chance to reconsider this matter. We can only do that by moving an Amendment because the Bill has already been through the House of Commons and, unless we pass an Amendment to it, it will not return there.
The points made by the noble Lord, Lord Winterbottom, did not persuade me at all. The noble Lord seemed to think that the alternative to this—what he called "modest proposal"—was a
Resolved in the affirmative, and Amendment agreed to accordingly.
Clause 1, as amended, agreed to.
8.24 p.m.
House resumed: Bill reported with an Amendment.
Then, Standing Orders No. 43 having been suspended (pursuant to Resolution of 13th July), Report received, Bill read 3a, and passed, and returned to the Commons.
massive new Post Office Bill. I agree that when, and if, we come to implement all, or the majority, or whatever part of the Carter proposals as take our fancy, it will indeed need a major piece of legislation; but if, in the meantime, having re-thought through the matter, the Government chose to introduce another Bill to implement only the industrial democracy recommendations of the Carter Committee, then it would not be a major Bill; it would be like this one, just a clause or two. As I have said, I believe that the important effect of this Amendment is to give the other place a chance to consider the matter again, and I hope your Lordships will agree with me.
8.20 p.m.
On Question, Whether the said Amendment shall be agreed to?
Their Lordships divided: Contents, 37; Not-Contents, 20.

CONTENT

Abinger, L.

Denham, L. [Teller.]

Newall, L.

Alexander of Tunis, E.

Drumalbyn, L.

Northchurch, B.

Alport, L.

Elton, L.

St. Aldwyn, E. [Teller.]

Auckland, L.

Falkland, V.

Spens, L.

Avon, E.

Hanworth, V.

Strathclyde, L.

Belstead, L.

Hawke, L.

Swinfen, L.

Boyd-Carpenter, L.

Hornsby-Smith, B.

Trefgarne, L.

Brougham and Vaux, L.

Kinnoull, E.

Vivian, L.

Colville of Culross, V.

Long, V.

Ward of North Tyneside, B.

Colwyn, L.

Lyell, L.

Westbury, L.

Cullen of Ashbourne, L.

Macleod of Borve, B.

Young, B.

de Clifford, L.

Monck, V.

De Freyne, L.

Mottistone, L.

NOT-CONTENTS

Champion, L.

Murray of Gravesend, L.

Stewart of Alvechurch, B.

Collison, L.

Oram, L.

Stone, L.

Harris of Greenwich, L.

Peart, L. (L. Privy Seal.)

Strabolgi, L. [Teller.]

Kirkhill, L.

Peddie, L.

Wallace of Coslany, L. [Teller.]

Llewelyn-Davies of Hastoe, B.

Ritchie-Calder, L.

Winterbottom, L.

Lovell-Davis, L.

Segal, L.

Wynne-Jones, L.

Melchett, L.

Shepherd, L.

BRITISH RAILWAYS ORDER CONFIRMATION BILL
Brought from the Commons; read 1a, and (pursuant to the Private Legislation Procedure (Scotland) Act 1936) deemed to have been read 2a and reported from the Committee.

PREFERENTIAL PAYMENTS IN INSOLVENCY (NORTHERN IRELAND) ORDER 1977
8.30 p.m.
The MINISTER of STATE, NORTHERN IRELAND OFFICE (Lord Melchett)The MINISTER of STATE, NORTHERN IRELAND OFFICE (Lord Melchett) rose to move, That the draft Preferential Payments in Insolvency (Northern Ireland) Order 1977, laid before the House on 5th July, be approved. The noble Lord said: My Lords, I beg to move that the Preferential Payments in Insolvency (Northern Ireland) Order be approved. The Insolvency Act 1976, which contained many worthwhile and desirable changes to the law on companies and bankruptcy in Great Britain, was not extended to Northern Ireland in view of the considerable differences between the law on those subjects in Great Britain and Northern Ireland. These changes will be incorporated in comprehensive legislative provisions on the company and bankruptcy law of Northern Ireland, which are to be made public within the next year. However, the Government believe that the application to Northern Ireland of the additional protection provided in Great Britain for workers by the Insovency Act 1976 should not be delayed until the passing of the proposed legislation and, for that reason, this short order has been specially prepared.
The order increases the present limit of £200 on preferential payments for wages to £800 and thereby provides more realistic protection to employees caught up in the insolvency of their employer. The new limit of £800 is the amount now in force in Great Britain under the 1976 Act. I beg to move.
Moved, That the draft preferential Payments in Insolvency (Northern Ireland) Order 1977, laid before the House on 5th July, be approved.—(Lord Melchett.)
On Question, Motion agreed to.

LEGAL AID, ADVICE AND ASSISTANCE (NORTHERN IRELAND) ORDER 1977
8.33 p.m.
Lord MELCHETT: My Lords, I beg to move that the Legal Aid, Advice and Assistance (Northern Ireland) Order 1977 be approved. This order will bring the
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law governing legal advice into line with the rest of the United Kingdom and will also make some changes to the existing legal aid schemes in Northern Ireland for both civil and criminal proceedings.
The main purpose of the order is to introduce the £25 or "Green Form" Legal Advice and Assistance scheme into Northern Ireland. The green form scheme was introduced in Great Britain in 1973 and has proved extremely successful. I am sure your Lordships will welcome the fact that this order brings the legal advice scheme in Northern Ireland broadly into line with the Legal Aid Act 1974. The financial conditions governing the scheme are the same as those currently applying in Great Britain and it is intended to amend these by regulation in the light of any future increases which may be approved for the rest of the United Kingdom.
There is one respect in which this order differs from the original £25 scheme. Section 7A(4) enables a court in certain circumstances to authorise a solicitor to assist a person who is party to proceedings. Experience of the operation of the corresponding provision in Great Britain has shown that on some occasions this facility has been misused by solicitors to represent a client in proceedings where an application for legal aid has been made and has been refused. Paragraph 4(c) of 7A will, it is hoped, prevent such abuse. The Order also makes certain changes to the existing legal aid schemes in Northern Ireland, again to bring the law in Northern Ireland into line with that in the rest of the United Kingdom. I beg to move.
Moved, That the draft Legal Aid, Advice and Assistance (Northern Ireland) Order 1977, laid before the House on 5th July, be approved.—(Lord Melchett.)
Lord BELSTEAD: My Lords, I welcome the Order. As the green form scheme was introduced into Great Britain over four years ago this order is obviously necessary, as is Article 6 which enables the means of an applicant for legal aid to be inquired into. That is done in Great Britain, of course, in order to fix the maximum that an applicant can be required to contribute towards legal costs. If my reading of Article 6 together with the Schedule is correct, then that will now be the system in Northern Ireland as well. My Lords,

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with those few words I certainly support the passage of the order.
On Question, Motion agreed to.

CRIMINAL DAMAGE COMPENSATION (NORTHERN IRELAND) ORDER 1977
8.35 p.m.
Lord MELCHETT: My Lords, I beg to move that the Criminal Damage (Compensation) (Northern Ireland) Order 1977 be approved. This order will replace and amend the provisions of the Criminal Injuries to Property (Compensation) Act (Northern Ireland) 1971, and will affect claims for damage to property caused on or after 1 April 1978.
Under the 1971 Act and earlier legislation some 116,000 claims had been received up to the end of the last financial year, of which 100,000 had been settled: £200 million has been paid out, including interim payments on claims still in hand. The draft order follows on a review of the 1971 Act by a committee under the chairmanship of Sir James Waddell. The 1971 Act provides compensation for wanton or malicious damage to agricultural property; and for malicious damage to other property caused by unlawful assemblies of three or more persons or by proscribed organisations. In these respects the order closely follows the 1971 Act. In drafting this Order we have had in mind that damage to property should not and cannot be regarded only as a private injury but also as a loss to the community. Moreover, our experience of the kind and scale of terrorism suffered since 1969 suggests a need to ensure, more specifically than in the 1971 Act, that compensation does not go to the undeserving.
In Article 2 the term "unlawful association" has been redefined to include not only proscribed organisations but any organisation engaged in terrorism. This is an important extension of the scope of compensation. We intend in this way to cope with any proliferation of terrorist organisations—sometimes quite short-lived—which cannot be associated with any proscribed body. Article 9 places the onus on applicants to show that they took reasonable precautions to avoid loss. It would still be for the courts to decide, on appeal, what is reasonable. The
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Article also provides that compensation may be withheld or reduced, subject again to any decision of the court on appeal, if the applicant did not comply, for example, with regulations for the storage of inflammable materials—a kind of negligence which greatly assists the fire bomber—or contributed to the loss by provocative or negligent behaviour; or if the property was being used for any unlawful purpose; for example, if it was used for unlicensed drinking or if it was an untaxed car.
Article 10, paragraph 3, provides that no compensation is payable to anyone who is or has been a member of a terrorist organisation, or who is or has been engaged in acts of terrorism, except at the Secretary of State's own discretion (under Article 12(5)), if he thinks it would be in the public interest to make some payment. Paragraphs (6) and (7) provide that no compensation is payable for a loss of £100 or less, and that any compensation payable will be reduced by £100. Paragraph (8) of Article 10 allows the Secretary of State, subject to appeal, to withhold payment of compensation until an applicant has given the police all reasonable help which could lead to the arrest of the person who caused the damage. Article 11 provides that where compensation for damage to a building is based on something greater than the diminution in market value—for example, on the cost of reinstatement—the applicant may be required to carry out that rebuilding as a condition of getting compensation beyond "market value".
Article 13 makes clear the Secretary of State's power to deduct from compensation debts due to Government Departments and public authorities. Articles 16 and 17 allow the Secretary of State to recover compensation from anyone convicted of causing damage in respect of which compensation has been paid; or from an applicant who has received reparation from such an offender at common law, or from an applicant who has failed to make a full and true disclosure of all facts relevant to his or her own claim. My Lords, I have attempted to draw attention to only the most important Articles, and in particular to the major changes from the 1971 Act. This is an important order, which in many respects mirrors the changes in compensation for

569
criminal injuries that we considered last week. I beg to move.
Moved, That the draft Criminal Damage (Compensation) (Northern Ireland) Order 1977 laid before the House on 13th July, be approved.—(Lord Melchett.)
8.40 p.m.
Lord BELSTEAD: My Lords, I should like to welcome the order and thank the noble Lord, Lord Melchett, for explaining it. It puts right an anomaly in the 1971 Criminal Injuries to Property Act whereby compensation could be paid only for damage to property caused by three or more persons or by proscribed organisations, Article 2 now defining an unlawful association as proscribed organisations and any organisation engaged in terrorism. That is an important extension of the scope of the Criminal Injuries to Property Act. The noble Lord, Lord Melchett, said that this is an important order. It certainly is. Two million pounds paid out in the last six or seven years is a huge sum of money.
I should particularly like to welcome the effect of Article 10, which prohibits the payment of compensation to terrorists. As the noble Lord said, this really completes the work begun by the Criminal Injuries to Persons Order with which we dealt last week. Now large sums of money will no longer be paid to those who are responsible for terrorism, which has happened on some occasions. I would bracket with that word of welcome Article 11, which enables compensation not to be paid until rebuilding has been completed, and Article 13, which prevents compensation payments to anyone who is in debt to the Government or to a public authority, and, as I am afraid we all know, there are too many of them in Northern Ireland at the moment.
I should like to express my thanks to Sir James Waddell and his Committee for reviewing the operation of the 1971 Act from which the drafting of this order springs. I have two questions I should like to ask the noble Lord, Lord Melchett, of which I have been unable to give him notice. Perhaps if he is unable to answer them this evening he will write to me. I read in the proceedings in another place that the Government intend at some future date to repeal the provision of
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compensation for damage to agricultural property. That provision is in the order but the Government have expressed their intention that it should be repealed in the future. Why do the Government believe that this provision should be of no effect at some future date?
Secondly, I notice that Article 6 fixes the minimum amount of any claim at £100, although the Waddell Report recommended £50. I should be interested to know the sort of proportion of claims that have been made below the £100 figure and whether the Government really are satisfied that the increase from what was a £20 minimum to a £100 minimum will not be unduly hard upon small traders and householders. With those two questions, I support the passage of this order.
8.42 p.m.
Lord MELCHETT: My Lords, I am very grateful to the noble Lord, Lord Belstead, for his support for the order. I should like to echo his thanks for the work that Sir James Waddell and his Committee did in reviewing the 1971 Act. The noble Lord asked me two questions. As regards the £100 limit below which compensation for damage to property will no longer be paid, I do not have the exact figures for the number of claims which over the past few years have been met by payments of less than £100. I shall certainly write to the noble Lord giving him those figures.
The Government are certainly satisfied that £100 is a reasonable limit in view of the rate of inflation since this matter was examined and in particular since the 1971 Act has been in force. I think the noble Lord will agree — and as I said when introducing the order—the importance, when one views damage to property as being not only a loss to the individual but also a loss to the community, must be in reinstating and replacing a building which is blown up and a shop which is totally destroyed. It is also important to compensate individuals for loss that is caused to them in that way. But it seems quite reasonable to have a limit of something like £100 which, as the noble Lord will know, is in common use in most insurance policies giving cover against damage of this sort.
The noble Lord also asked me about the Government's intention as regards

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compensation to agricultural property. The noble Lord knows that at the moment agricultural property is in a special position as compared to other types of property. It is the Government's expressed intention at some stage in the future to remove the special privileges that agricultural property has. However, as the noble Lord pointed out, the provisions in the order do not change agriculture's special position as compared to the 1971 Act—that has been left in for the time being. We shall obviously want to see how the level of violence and the extent of destruction of property goes in Northern Ireland over the next period of time before making a final decision on the timing of removing this special and extra compensation that is paid towards damage for agricultural property.
On Question, Motion agreed to.

NORTHERN IRELAND (EMERGENCY PROVISIONS) (AMENDMENT) BILL
8.44 p.m.
Lord MELCHETT: My Lords, I understand that no Amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript Amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the Order of Commitment be discharged.
Moved, That the Order of Commitment be discharged.—(Lord Melchett.)
On Question, Motion agreed to.
Then, Standing Order No. 43 having been suspended (pursuant to Resolution of 13th July), Report received, Bill read 3a, and passed.

AIR SERVICE AGREEMENT WITH USA
8.45 p.m.
Lord BOYD-CARPENTER Lord BOYD-CARPENTER rose to ask Her Majesty's Government, in view of the fact that the Agreement which they have concluded with the United States of America for a new Air Service Agreement prevents them from honouring in full either the letter or the spirit of the undertakings given to British Caledonian Airways in paragraph 9 of Cmnd. 6400, what
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provision they intend to make to compensate that airline. The noble Lord said: My Lords, in rising to seek leave to ask the Unstarred Question standing in my name I should like to make it clear that I do not propose to raise the whole complex question of the Bermuda Agreement. First, it is too large and important a matter to be dealt with adequately by an Unstarred Question at this hour of the day. Secondly, we have not yet—officially at any rate—seen the full text of the Agreement which I understand is to be signed in Bermuda on Saturday.
Apart from two general comments which I shall make quickly, I want to confine myself to the specific Question of which I gave notice—that is, the treatment under this Agreement of British Caledonian Airways, and of its consequential position. The two general questions on the Agreement, which I foreshadowed, are as follows. I believe it is now self-evident that the decision last summer to give notice to denounce the old Bermuda Agreement was singularly inept in timing, given that it was made last summer at the height of the American Bicentennial celebrations and with an American Election pending. Under the American system, where there is a change of Government following an Election, there is a period of three months of lame-duck government in which no serious negotiation can be carried out. I can only put down our Government's lapse in this respect to the fact that they felt that the possibility that a Government facing an Election might be defeated was too horrible for them to contemplate.
Secondly, it is clear that the original negotiating position, with its apparent insistence on single designation only on routes between London and New York, was on a wholly unrealistic basis. Having said that, I must—as I have already done once in this House—pay tribute to the skill and devotion to duty of our negotiators who, placed in a very difficult position as the result of the Government's two initial mistakes, did their level best to redeem it, and after the Department of Trade element in the team had been strengthened, did a very fine job of work indeed. It would be ungenerous and ungrateful not to accept that. However, the outcome for British Caledonian Airways, in my judgment, and, judging

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from its published statements, in its judgment, has not been at all satisfactory or, indeed, what it might have expected. If one is to understand the situation it is necessary to sketch in the background, although in view of the hour I shall do so as briefly as possible.
Under the original Civil Aviation Guidance of 1972, which was produced by the then Conservative Government, British Caledonian was placed in a strong position. It was to be given a measure of preference over all the other independent airlines and an opportunity to compete with British Airways. It was specified as the major independent British airline. In accordance with that Guidance, in 1973 the Civil Aviation Authority granted to it, on its application, licences to operate inter alia to Singapore, Toronto, Atlanta and Houston. Appeals were submitted against some of those licences, but those appeals were dismissed by the then Secretary of State.
By the end of 1973 British Caledonian Airways was in possession of licences, to Singapore, Toronto, Atlanta and Houston, among other points. It was then the duty of the Department of Trade in the case of Singapore and Toronto, where we already had rights, to designate them, and, in the case of Atlanta and Houston, where we did not at that stage have rights, to seek to negotiate that these additional gateways should be opened under the previous Bermuda Agreement. I am sorry to have to tell the House that they did nothing at all.
I do not want to comment further on that because on a certain reading of the judgment of the Court of Appeal last year, in the decision in Laker v Secretary of State for Trade, it is at least arguable that the Department of Trade were under a legal duty, licences having been granted and having come into effect, to take steps to designate; and it may be, though it is not for me to comment on it, that on a study of that judgment British Caledonian Airways may feel disposed to take such steps as they may be advised. The House will understand, therefore, that I do not wish to state more than the bare facts.
The next stage in the procedure came when, in 1976, the present Government—Mr. Peter Shore then being the Secretary
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of State—issued a new Guidance. That Guidance, as the House knows, suffered something of a battering from the Court of Appeal, which decided that the Secretary of State had exceeded his powers, acted ultra vires, and that some part of it was invalid. It was accompanied by a White Paper which is still, so far as I know, as valid as any White Paper is. It contained in paragraph 9, which I refer to in my Question, some clear indication of what the Secretary of State was trying to do to British Caledonian. He was proposing under his policy review to see that steps could be taken for the licences on certain of their routes to be taken away, but gave clear assurance that when Atlanta and Houston were opened up they would be able to operate there.
We now come to the Agreement itself as to which British Caledonian have expressed their disappointment. By one of those happy coincidences which adorn our public life, it so happened that a Member of another place, who is the chairman of the Labour Party Civil Aviation Committee in that House, asked a Question for Written Answer of the right honourable gentleman the Secretary of State for Trade. Again by happy coincidence, this was answered on the 19th of this month.
The Question, as it bears exactly on the issue I am raising, is one I should like to read to the House with as much of the Answer as seems to be relevant. For those who want to study the full Answer at length it is in the Official Report of the House of Commons of 19th July, Written Answers Columns 470 and 471:
"Mr. Kerr asked the Secretary of State for Trade whether he is satisfied that British Caledonian Airways will obtain a fairer opportunity to establish viable services to Houston and Atlanta under the new Air Services Agreement with the United States of America than could have been obtained under the 1946 Bermuda Agreement".
It will not surprise the House that Mr. Dell began his Answer:
"Yes. We have won a better deal for British Caledonian Airways than would have been possible under the 1946 Agreement".
He then goes on to refer particularly to the position on Houston, Atlanta and Dallas, and there are one or two aspects of it which are relevant to the matter I am raising tonight and on which I should like to comment.
It is true that, as he says, under the Agreement with the United States, British Caledonian are to have rights to operate services to Atlanta starting three years from now, whereas the United States' carrier on that route will be able to operate as soon as it is ready to do so. By way of balance, or purported balance, to that British Caledonian are given rights on Houston immediately with the comparable American carrier coming on in three years' time. But although Mr. Dell, in the Answer to which I have referred the House, seeks to brush it off as a minor matter, the right to operate out of Houston is greatly diminished in value by the fact that under the same Agreement a United States' carrier is authorised to operate out of Dallas/Fort Worth into London.
Noble Lords who are not familiar with the entertaining intricacies of the geography of Texas may not fully appreciate that Dallas/Forth Worth, is, first of all, a magnificent airport. I have visited it. It is immensely impressive. More important, it is a centre of inter-lining for United States traffic, and its area is larger than the whole of Manhattan Island which, when you visit the Americas, they tell you every five minutes; but it happens to be true. More important again, it serves the same area of industrial central and southern Texas as does Houston. It is a matter of some 200 miles away, which in terms of American distances, American roads, and American automobiles is not what that would seem in this country, and in fact it serves the same area as Houston.
Consequently, the position so far as British Caledonian is concerned is that they have to wait three years on Atlanta, for which they already have a licence, while an American airline, which I understand will be Delta—a highly efficient airline—gets well dug in. They themselves are free to start on Houston, and I understand intend to do so in a matter of a few weeks, but will face almost from the beginning a tapping of that market by an American airline through Dallas/Fort Worth. Mr. Dell refers to this as having a quite modest effect.
"There will be some indirect competition for BCAL's Houston service from the United States service to Dallas; …"
But of course it doe's alter the picture.
There was also a matter which, until this morning, was something of a mystery. It is my understanding that the Agreement as initialled during the famous all-night meeting last month provided also for a United States cargo carrier to operate immediately from Houston in competition with British Caledonian. Mr. Dell does not refer to that in his Parliamentary Answer. I was puzzled when I saw that, particularly because I know Mr. Dell—with whom I had the privilege of working when I was at the Civil Aviation Authority—as a man of the highest and most scrupulous integrity, who would never run the slightest risk of giving a fallacious or deceptive answer. With his habitual courtesy he wrote to me this morning and told me that in subsequent discussion the Americans had agreed to defer the operation of this cargo service out of Houston for three years, but apparently it will operate at that stage.
We have the position that British Caledonian who, for years have held licences on both of these points, who have the assurances given in paragraph 9 of last year's White Paper, will have to wait three years to go on to Atlanta, where the Americans will establish themselves without any British competition at all, and themselves will operate immediately out of Houston but faced with the immediate competition of American passenger and freight carriers from Dallas/Fort Worth tapping the same area, as well as the fact that at the end of three years they will have to face a cargo and no doubt American passenger carrier out of Houston. They seem, therefore, to have got considerably the worst of the deal.
Finally, I want to ask the noble Lord what the Government propose to do to help British Caledonian and compensate them in respect of this decision.
I have two suggestions to make, but the Government, with all their resources, may have better ones. One suggestion is that they should themselves be allowed to operate on Dallas/Fort Worth. I appreciate that in the first place they do not have a licence for that and that they would have to apply to the Civil Aviation Authority. I can, however, tell the House that when, in 1973, they applied to the Civil Aviation Authority, also for a licence on Dallas/Fort Worth, that application was rejected solely on the

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basis, as the published statement by the Authority indicated, that it was premature, and secondly because they had themselves indicated that they would not want to operate it for some years. If they were to be allowed now to operate on Dallas/ Fort Worth, that would enable them to meet the sucking off of traffic to the Americans which otherwise will occur in respect of their Houston service and would give them a nice compact area to serve.
The other way in which they could be helped is this: there are no licence complications for them so far as Los Angeles is concerned: they hold a licence for Los Angeles. The Agreement provides that there is one further point to the United States, other than New York but an unspecified one, and I understand at the choice of the British Government, between London and Los Angeles. The Americans are doubly designating on Los Angeles; on Traffic figures it is the natural route for double designation and one understands why they are doing it. British Caledonian already have rights in the sense of a licence on Los Angeles and it would seem that one of the ways of compensating them for the somewhat raw deal they are getting in respect of the Southern States would be for them to be designated, holding a licence as they already do, on Los Angeles, and those are the suggestions I would leave with the noble Lord.
I know that the noble Lord will not contradict me when I say that British Caledonian are a very fine airline. They look after their passengers extremely well and although there is nothing more dangerous in the world of aviation than ever referring to safety considerations, they have a very fine safety record. Moreover, they have been in the past acknowledged to be the principal British independent operator, and here I would leave a quite serious point with the noble Lord.
It was the purpose of the Edwards Committee and their recommendation to set up a Civil Aviation Authority to try to take the guidance and control of civil aviation out of Party politics. It will be the greatest pity if we got into a situation in which British Caledonian, as the biggest independent operator,
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were forced to look to Conservative Governments for more help and expect to be rather badly treated by Labour Governments for doctrinal reasons because they are a private enterprise airline. If that were to develop it would be extremely bad for civil aviation and would help to defeat some of the purposes of setting up a Civil Aviation Authority which was, as I have indicated, designed to seek to insulate this industry from the changes that could follow, for political reasons, from changes of Government.
Having briefly, for this is a big subject, even confined to British Caledonian, sought to raise this matter, I beg the Government—the Agreement is no doubt now finalised; it is to be signed on Saturday and nothing can be done about it—to accept that it lies in their hands to help to make up to British Caldeonian in other ways for the setback which they have received from this Agreement. I suggest that it would be in the interests of long-term stability of British Civil Aviation and of the non-political, non-partisan approach which we all want to see towards it if the Government were really to make some efforts, either in the way I have indicated or otherwise, to give them a little further help.
9.5 p.m.
Earl AMHERST: My Lords, I wish at the outset to echo what the noble Lord, Lord Boyd-Carpenter, said in appreciation of the efforts of our negotiators on their extremely difficult negotiation of a new Bermuda Agreement. I do not propose to follow him into the question whether the Government chose the right time to renegotiate it. This is a new Agreement, which I believe is now called Bermuda II, which we have not yet seen, but in the meantime there are a great many questions to which I wish to draw attention and I have given prior notice to the Minister of those questions.
How much overall have the British gained or lost by this new Agreement? How many new routes through the United States of America have the British gained in addition to the old Bermuda Agreement? Our previous policy of single designation seems to have been modified by double designation to New York and to an unspecified point yet to be announced. British Caledonian, I think I am right in

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saying, have had their licence from Los Angeles taken away. Would it not be in all fairness and logical to appoint this company to be the second British designated operator to this new point, where-ever it is, whether it is Los Angeles or somewhere else?
Are the Government now still determined on a policy of single designation outside of New York and outside of this unspecified point for all routes across the Atlantic? What is the detail of the cutback in the United States Fifth Freedom through the United Kingdom? What freedom rights through the United States have the British had cut back as a quid pro quo? I have been told that the United States have been given unlimited Fifth Freedom rights through London to Frankfurt and that these rights have been given in perpetuity. Can such rights be given in perpetuity to anybody and, if so, what rights have been given to the British in return? I have also been told that the United States have been given unrestricted rights in London to pick up all and any United States originating traffic. Does this mean genuine stopover traffic only or is it totally unrestricted, including change of gauge? If so, what have the British got in return? What is the detail of the British Fifth Freedom rights through the USA?
I believe Laker Airways is to be the second British designated operator on the London-New York route. If the Skytrain service is to be so operated, will it be subject to the limitations of the licence for Skytrain? Because, if so, will not Laker Airways be heavily handicapped in competing with the reciprocal American service if that American service is not similarly restricted? In fact, will not Mr. Laker be called upon to compete with the American reciprocator with his hands virtually tied behind his back? I am informed that the US carriers have already filed their winter schedules with the British Government. Bearing in mind what happened last winter, when so many US lines indiscriminately dumped surplus capacity on London, are the Government now satisfied that the new regulations for capacity in the new Bermuda Agreement will totally protect the British operators?
The Earl of KINNOULL: My Lords, may I interrupt my noble friend? I am not sure whether he has read the Question on the Order Paper, but none of these
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points comes within the scope of my noble friend's Question. I do not know whether that is a fair point to make.
Earl AMHERST: My Lords, I have already said that I was not going to follow the noble Lord, but I am going to say that questions on the Bermuda Agreement are raised; and I was going on to say, if the noble Earl would let me finish my speech, that I know we have not seen the agreement yet, and it may well be that we shall have to wait and see, but, in the meantime I think it is very useful to get these questions out into the open.
Can the Minister now give an assurance that these regulations for the scheduled operators will also fully cover operating across the Atlantic by the charter and the non-scheduled operators? I understand that the Concorde service to Washington is excluded from the control clauses of this new Bermuda Agreement, and that in exchange Pan American have been given the rights to operate a round-the-world service from Washington to London with 747 aircraft. Can the Minister say what will be the position when the Concorde is allowed into New York, as we all hope it will be; and can he give us any more information as to how this is going on?
I am sure there are a great many other questions relating to the whole of this Bermuda Agreement, and I understand that the agreement is still in the form of its final legal drafting. It should be operative on 23rd July—as the noble Lord, Lord Boyd-Carpenter, has already said, two days from now—but it will be published only some time in August. Therefore, in discussing it tonight, we may be (at least, I am, or I may be) talking in the dark. If so, I should not be surprised, or take it amiss, if the Minister, in his reply, tells me to wait and see.
To go back to the terms of the Unstarred Question, my Lords, it makes definite reference to Command Paper 6400, The Future of Civil Aviation Policy, about which I would ask for some clarification in view of what seems to have happened since it was published in February last. Paragraph 8 of this document stated that double designation for long haul routes across the Atlantic was to be ruled out. As a result, British Caledonian was to lose its licences for New York, Los

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Angeles via Chicago and Houston and Atlanta via Boston. But paragraph 9 stated that British Caledonian was to retain its licence for Houston/Atlanta, and there was no mention of Boston. In a recent Press release British Caledonian announced the early inauguration of its non-stop service from London to Houston, and at the same time drew attention to an apparently last-minute United States decision to operate an American non-stop service from Fort Worth to London. British Caledonian state that this American service from Fort Worth/Dallas to London will very seriously deflect traffic from its Atlanta/Houston service.
Consequently, in an effort to offset some of these losses, British Caledonian are now asking that Fort Worth/Dallas be added to its licence for Houston, on the argument that Forth Worth, Dallas and Houston all lie in the same traffic catchment area. Can the Minister tell us whether the British Government or the US Government, either or both, consider this argument a valid one? I am sure that the answers to most of these questions lie in what we shall find out about the Bermuda Agreement when we see it, and, consequently, as regards the questions I have asked about British Caledonian, I shall not be surprised if the Minister still says, "Wait and see".
9.14 p.m.
The Earl of KINNOULL: My Lords, I do not intend to follow precisely what the noble Earl, Lord Amherst, has said on the wider scope of this question, because I think that my noble friend's Unstarred Question is fairly narrow, and rightly so, and specifically to do with British Caledonian vis-à-vis the Bermuda Agreement. I am sure that the whole House is indebted to my noble friend for the skilful manner in which he raised this matter. My only quarrel with him is that there are two paragraphs numbered 9 in Command 6400. There is a Part I and a Part II to the document. He did not say to which Part he was referring. I think your Lordships will agree that no Member of this House can come near to equalling my noble friend's experience in the political part of British aviation or in facing the practical problems following his five years' distinguished chairmanship of the Civil Aviation Authority. That
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period of office temporarily silenced my noble friend. I well remember seeing him last year sitting silently on the Cross-Benches, no doubt longing to get up and interrupt some points which had been wrongly expressed; but I am sure that the House is now grateful that he is silent no longer and is able to express his views. My noble friend's Question is phrased in typically pungent terms and, indeed, his speech was typically pungent. I apologise for having missed the first few minutes of it.
If asked to give a view on the general points of the Bermuda Agreement, I think that many people would be as bemused as I am to understand the wisdom of the Government in their timing in terminating the old Agreement last year. It came in a Presidential year; it came mixed up with the IMF Conferences and with the Concorde problems. I do not think that one could have chosen a more sensitive occasion. The brinkmanship that followed may or may not have worried the Government, but it was extemely unattractive to the rest of us. For the thousands of Atlantic travellers who rely on British and American airlines not to know up to within five hours of the deadline whether all the services would be suspended was not exactly appealing. For the two countries, who pride themselves in a very special relationship and who pride themselves in leading the world in patient diplomacy, to be locked in this form of brinkmanship must have seemed strange to the rest of the world and not a shining example of the art of diplomacy.
My noble friend's Unstarred Question raises a number of very serious issues but the primary one, with which he dealt very well, is the future welfare of British Caledonian. Only a year ago, the Government were making some very graceful remarks about the major independent carrier: its value to the users, its undoubted appeal with its Scottish flavour, its impact on the international services, its value to British aviation and what it earns for the country. One must recall that two years prior to the announcement of the new guidelines, British Caledonian were locked in long and exhaustive discussions to reshuffle the international routes. The whole basis of the reshuffle was to find, within the Government's policy of single designation, a viable network with which they could foresee a good future.

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I do not think the guidelines were over generous to British Caledonian; but I find it disturbing that a year later, when all the uncertainties should have been dispersed by the guidelines, and when British Caledonian, I believe, placed orders for certain VC10s on the strength of the routes they had been given, we find that the Government have apparently—I say "apparently" because we know little about the Bermuda Agreement—done a deal with America which interferes with last year's Agreement.
As the noble Earl, Lord Amherst, said, not a great deal of information has yet come out on the Bermuda Agreement and it is still to be ratified; but there seem to be three points of note. The first is, as my noble friend said, that British Caledonian have lost for three years the use or the service from Atlanta; so that has been delayed for three years. Secondly their Houston service, which is of immense importance to them, has been weakeened materially by the use or service now going into operation of the American carriers. Thirdly, I think that the surprising thing—and I hope the noble Lord will deal with this—is that the Government have not yet nominated the second point qualifying for double designation. The Americans have done so; we have not. As my noble friend said, I hope that the Government will nominate this quickly and that it will be Los Angeles. I hope that the Government and the noble Lord will examine urgently this matter of how they can right some of the effects of the Bermuda Agreement on British Caledonian and that they will be able to say something quickly about the second point of double designation.
Another point of which I have not warned the noble Lord—for which I apologise—is this. The noble Lord, Lord Merrivale, is not taking part in the debate, but I suspect he would have raised the question about Zaire as he raised it the other day with the noble Lord. I understand that British Caledonian have decided to withdraw these services simply because they are not getting the funds out of Zaire. They have not had them for three years. In America, if this should happen I understand that the American Government can implement some fairly tough anti-trade laws against the offending Government if one of their companies is genuinely
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being dealt with harshly, unfairly and to the detriment of that company. This applies so long as it can be proved that it is a clear case of the foreign country acting unfairly. I understand that the British Government do not have these laws. I should like to ask the noble Lord whether he will look into this matter. It is obviously important particularly for independent airlines. I do not know whether British Airways have had similar experience.
The last point that I should like to raise is regarding the whole relationship and stability of licences, and the freedom that the Civil Aviation Authority was given by Parliament from Government; the freedom of issuing licences without interference unless it was a guidelines policy. If one is correct in saying that the Bermuda Agreement interferes with licences already granted by the Civil Aviation Authority and agreed by the Government, it brings a serious aspect into the whole question of licences and particularly in the independent sector when bankers and supporters, and all those producing enormous capital sums for independent carriers, rely on the licences. The licences should be sacrosanct for a period of time and there should be no interference. I hope that the noble Lord will be able to give some assurance tonight to that effect.
9.24 p.m.
Earl ALEXANDER of TUNIS: My Lords, I, too, am grateful to the noble Lord, Lord Boyd-Carpenter, for raising this matter. His experience as one-time chairman of the Civil Aviation Authority will add weight to his words which I hope will be followed closely by Her Majesty's Government. From the information available to us at the present time, we have come away from the negotiations with the short end of the stick. The key objectives of the negotiations of the new Bermuda Agreement, as they affect British Caledonian, have, in my opinion, fallen rather short of expectations. We have been reminded that the original agreement was signed in 1946 and substantially revised in 1966, which I believe was to the benefit of all parties.
Whether it was wise for the British Government to precipitate a wholly new agreement in those circumstances, must be open to question. Of course it is easy for

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me to say this with the benefit of hindsight, of which I can boast twenty-twenty. However, with the signing of the new agreement in less than three days' time I cannot but feel that we have been "gazumped". I should like to explore the matter of the Dallas/Fort Worth clause and add a few points to those already expressed by previous speakers. I apologise if some of my comments seem to overlap those of earlier speeches.
The geographical triangle of the cities of Dallas, Fort Worth and Houston represent a heavy concentration of potential customers. Dallas and its neighbour, Fort Worth, share an airport which, as the noble Lord, Lord Boyd-Carpenter, said, even by Texan standards is enormous. Some years ago, at the beginning of the 1970s, this potential market caught the eye of British Caledonian during its search for business in the States. The early talks which took place found the Houstonians receptive to the idea and keen to encourage overseas airlines. In fact, they were keen to the point that the Chamber of Commerce of Houston, which represents powerful commercial interests in that area, came to London to beg for the inclusion of British Caledonian in the apportioning of the air carrier routes.
That appeal was not without influence. The airline, British Caledonian, estimated its passenger services as carrying 69,000 persons in one year's operation, and it was originally planned to start in the spring of 1978. They would be using the 707 and the newer, wide-bodied DC.30. Servicing a new route, my Lords, involves no small investment on the part of an airline. Engineering and aircraft maintenance cannot be done on the cheap and, of course, neither can the marketing and sales. It need hardly be added, perhaps, that to compete with foreign carriers in a home market is both a demanding and difficult task, whatever so-called "sphere of interest" is allocated to that airline.
This new agreement, I understand, allows an American carrier to operate an all-cargo service between London and Houston. British Caledonian estimates that this concession alone will cost the airline £750,000 in lost revenue. Furthermore, the effect of Dallas/Fort Worth
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being part of the new Agreement will—and here I quote from what the airline say:
"Lead to a 34 per cent. diversion of legitimate British Caledonian traffic from Houston and a loss of revenue in the first year of £5 million for passengers and one third of a million pounds for cargo".
Those figures have been accepted as realistic by the United Kingdom authorities. To put it another way, the revised estimate they have to work on shows that the passengers who are expected to fly by British Caledonian now number only 47,000.
To aggravate matters, Pan American have applied for a licence to operate from Houston via Dallas/Fort Worth to London. I understand there is no reason why that licence should not be granted as it is within a domestic area and outside the terms of the Burmuda II Agreement—a fact which, if correct, somewhat surprises me. I was assured of this application by a director of British Caledonian. Therefore, to counter that threat, British Caledonian has had to advance the starting date of its London to Houston service to 23rd October this year, in order to build up a market as quickly as possible.
It has been generally assumed—and certainly it was the impression given by the news media—that the Bermuda II Agreement represented a triumph for this country and that British airlines would be getting a greater share of the profitable long-haul routes. However, as we have heard from the noble Lord, Lord Boyd-Carpenter, and others, this hardly seem to be the case.
I will refrain from taking up more of your Lordships' time, since the other arguments I was going to put forward have already been better expressed, and with greater force. However, I should like to conclude by asking the Minister, when he comes to reply, whether he believes there was adequate consultation with. British Caledonian, whether the Bermuda II Agreement really reflects the needs of this airline, and, finally, whether in future negotiations the airline's representatives should not be able to participate, rather than merely observing the proceedings.
9.30 p.m.
Lord TREFGARNE: My Lords, we are indeed grateful to my noble friend Lord Boyd-Carpenter for raising this matter tonight. As my noble friend Lord Kinnoull has said, his knowledge and authority on this subject are second to none. At the risk of upsetting my noble friend, I am going to depart a little from the Question on the Order Paper, and, relating to the Bermuda Agreement, put some general points to the Minister which I do not believe have been adequately ventilated thus far, and to which I hope the noble Lord will be able to reply. Not all of the matters I raise will be specific questions aimed at the noble Lord; some of them will be my own views on the subject. But the bulk of what I have to say will be in the form of the interrogative, aimed at the Government.
I wholly support the view advanced by my noble friend Lord Boyd-Carpenter that the deal which has been done on behalf of British Caledonian is depressing and unsatisfactory. I suppose that it all stems from the point which I think has been raised by every noble Lord who has spoken so far; namely, the timing of the denunciation of the first Bermuda Agreement, originally signed in 1946. That Agreement having served for 30 years, no less, suddenly fell into disfavour with the Government and, apparently without any detailed consultation with anyone, it was denounced. As all noble Lords have said, it was presidential election year in the United States, so the period of negotiation could only be short; it was the bicentennial year in the United States, which must have distracted them; the Laker Airways issue was unresolved and, above all, the position of Concorde was far from clear.
Who was consulted before this denunciation took place? Were the Civil Aviation Authority consulted? Surely they had a right to be consulted. Surely they should have been consulted. If they were, did they specifically agree not only to the fact of denunciation, but to the timing of the denunciation? Some of us might be persuaded, if the noble Lord went on long enough, that the fact of denunciation was in the long run justified. But I doubt whether any Member of your Lordships' House would be able to agree
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that the timing was right, and as the timing was so crucial I want to know specifically whether the Civil Aviation Authority were consulted, and whether they agreed to the timing of the denunciation.
In addition to the Civil Aviation Authority, who else was consulted? After all, there were many people who had a vital interest in the matter. What about British Airways? We have hardly heard mention of them so far. But, of course, a great percentage of their business, including the operation of Concorde, falls within the ambit of both Bermuda I and, indeed, Bermuda II. And what about British Caledonian and Laker Airways? Did the Government ask them, or even consult with them, or even advise them that this denunciation was under consideration?
Regarding Laker Airways, my noble friend Lord Gisborough asked the noble Lord, Lord Oram, a Starred Question this very afternoon, and the noble Lord, Lord Oram, answered in clear and unequivocal terms, which I greatly admired, what he thought of the deal that Laker had got from his permit recently granted by the Americans. But I suggest that some of the problems, at least, which have so recently beset Laker have arisen from the fact that the Government threw the whole matter into uncertainty by denouncing the Agreement in the spring of last year. However, denounce it they did, and we are now entitled to consider and ask what success the Government and their negotiators have achieved in arriving at the new Agreement. I do not wish to detract from the words of congratulation which my noble friend Lord Boyd-Carpenter addressed to the negotiators, but, as Laker himself has complained, they were fighting with one hand tied behind their backs.
There are a few specific points that I should like to put to the noble Lord about the provisions of the new Agreement. As noble Lords have said, the final document is to be signed in Bermuda this weekend, although so far its text has not been published. Nevertheless, the comments in the American Press on the matter are infinitely more

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complete and detailed—I cannot say accurate because I do not know—than those which we have had on this side of the Atlantic. The American Press has posed the question as to why it was that they, the Americans, were willing to publish in such detail the provisions that had been agreed at the all-night sitting while we were so diffident. I do not believe that we need to look very far for the answer to that question, because some of us were not too proud of what we had achieved.
Turning to what, if anything, has been achieved, can the noble Lord say, first, whether the provision in Bermuda I which allowed for all aircraft duly certificated by the signing authority, or holding certificates of airworthiness issued by what is called an ICAO country, is to be found in the new Bermuda II Agreement? This is particularly important because it may be said—and I say it—that Concorde is a duly certificated aircraft and, as such, ought to be allowed to land in New York or anywhere else. I shall revert to that point in a moment.
Secondly, may I look at the point which was considered and touched upon by the noble Earl, Lord Amherst; that is, the question of Fifth Freedom rights. The Government have said that certain restrictions are to be imposed upon Fifth Freedom carriers—that is, American carriers—operating from London to points in Europe, but the major point to which Fifth Freedom flights out of London to Europe are operated is to Frankfurt. Far from being decreased, the rights to Frankfurt have been increased. I believe this to be a highly damaging provision which the Government were wrong to concede, especially because, in addition to granting unrestricted rights through London to Frankfurt, apparently they have also now approved what is called a change of gauge provision. This means that American carriers can base a smaller aircraft in London, change passengers from larger to smaller aircraft and thus operate at a high frequency, which is still more damaging to British and other European carriers.
There is nothing—or very little, at least—that is available as a quid pro quo
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to United Kingdom airlines operating out of the United States, because there are far fewer Fifth Freedom points beyond the United States to which we can operate. It is true that there are some to New Zealand and Australia. Indeed, British Airways have a joint arrangement with Air New Zealand for the operation of just such a service from Los Angeles onwards. However, the great catchment area of South America, which might be regarded as a legitimate Fifth Freedom destination for United Kingdom carriers, is not readily available, for two reasons: first, the strength of the regional carriers in that area who object very strongly to the provision of Fifth Freedom rights to Transatlantic carriers—namely, American regional carriers—and, secondly, the very real and perhaps unduly minimised difficulties of obtaining Fifth Freedom landing rights in South American countries from those South American countries themselves, which have to agree to these operations, as well as from the American Government.
One of the key features of this new Bermuda Agreement is said to be the capacity controls. Again the British Government have seen fit to keep quiet as to how these will work. There have been a number of unofficial reports in the American Press, some of which I have seen, but I should be obliged if the noble Lord could spell out in fairly clear terms how he believes that these capacity controls will work and, in the end, to whose advantage they will work.
Another point that I hope the noble Lord will be able to touch upon is the question of charter regulation. Before this Agreement comes into force charter flights are covered not by Bermuda I Agreement, as one might imagine, but by a separate document called a Memorandum of Understanding which has been used for this purpose for a number of years. But now we are told—and I welcome this—that charter flights are to be included in the provisions of the new Bermuda Agreement. But as to how they are to be included we are thus far not told. It is true that there has been some vague reference to multilateral arrangements. I am not exactly certain what that means, but I suppose it means that the charter flights across the Atlantic will

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be shared out between all the major European carriers; for example, the Germans, the Scandinavians, the Dutch and the French. I hope the noble Lord will be able to give me some more information on that, and in particular I hope he will tell me whether our European colleagues have been consulted and what view they take of having to share their flights with us, if that is what is intended.
I want now to return to Concorde. As your Lordships will know, the Port of New York Authority until now has consistently refused to grant landing rights to Concorde on the grounds principally that the aeroplane is too noisy. In my view—and I believe in the view of many responsible people in this field—the Port of New York Authority has no right to impose this ban because the American Government—namely, the sovereign Government of the United States of America—have entered into the Bermuda I Agreement, authorising the use of any aircraft holding the appropriate certificate of airworthiness, and the Concorde most certainly holds such a certificate. I believe that the action of the Port of New York Authority is ultra vires; in other words, they are acting outside the scope of the law as it applies to them, in preventing Concorde from landing in New York, and I believe the Government should have been more forthright thus far than they have been in making this point.
I recognise, of course, that in this matter we have to take our French colleagues with us, but the delays in bringing it to court in New York were, in my view, regrettable. The answer may not have been only in bringing the matter to court. I suspect that we have not been sufficiently vigorous on the diplomatic front because, although the American Federal Government may have only limited sway over the New York State Government, or the Port of New York Authority, I do not believe they have used all the sway, however limited, they do have.
It is interesting to remember that in the late 1950s, when the first Boeing 707 aircraft came into service on the North Atlantic route, we were then operating very quiet Britannia aircraft, although, of
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course, we had some Comets as well. However, the bulk of our operations were with comparatively quiet aeroplanes, and when those new, early and horrifyingly noisy Boeing 707s came into operation we could then have taken a strong line with the Americans and said: "We are not going to allow landing rights to your noisy 707s". But of course we did not because we were bound by the terms of the Bermuda Agreement.
The American Government, or at least one part of it, namely the PNYA, have chosen to disregard the Agreement which was so willingly entered into by both parties all those years ago. I think this means that when we were negotiating the new Agreement, Bermuda II, we should have said quite clearly that there was really not much point in entering into a new agreement if the Americans were not able to honour the old one. It is a matter of great regret that the Port of New York Authority continues to refuse Concorde landing rights and it is a matter on which the Government should continue to exercise themselves on the diplomatic front. Finally, my Lords, I want to end with a general observation on the provisions of the Bermuda Agreement. My noble friend Lord Alexander suggested that we have been "gazumped". I think we have been "taken to the cleaners".
9.45 p.m.
Lord ORAM: My Lords, I am faced straight away with something of a dilemma, and I am quite sure the noble Lord, Lord Boyd-Carpenter, will sympathise with me. He and I spent many years together in another place, and it was our habit there to look at the Question on the Order Paper and to confine ourselves to it. Indeed, if we did not, we were quickly rebuked. The noble Lord, in introducing this subject in his characteristically able way, did say that, with two minor exceptions, he would confine his remarks, as indeed he did, to the issue as tabled on the Order Paper. Because of his record in this field, particularly in recent years as chairman of the Civil Aviation Authority, of course the case that he deployed merits the most careful reply, and I shall do my best to give it that. Then, on the other hand, we have had a series of speeches, as the noble Earl, Lord Kinnoull, pointed out at one

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stage, which were very much wider in their scope than the particular situation of British Caledonian Airlines under the Bermuda Agreement. This is my dilemma, therefore.
I acknowledge that the noble Earl, Lord Amherst, and the noble Lord, Lord Trefgarne, did me the courtesy, which I greatly appreciated, of giving me advance notice of the much more wide-ranging points that they have now raised. I do not in any way wish to hide behind, as I might be able to do, the actual words of the Question: I want to respond to the wider questions that have been raised. But I hope your Lordships will recognise that I must perhaps truncate my answers to the other noble Lords in order to give a fuller answer to the noble Lord, Lord Boyd-Carpenter.
I hope we shall have in mind, as has been mentioned by one or two noble Lords, that the Bermuda II Agreement is to be signed on Saturday. It will be published; it will be placed in the Library; there will be a Command Paper, and I have little doubt—though this is not for me to settle—that there will be an opportunity of discussing that. That, I suggest, will be the appropriate opportunity to take up many of the points that have been raised here this evening, although I will, for the reasons I have mentioned, reply briefly to a number of them.
Perhaps I may take the noble Lord, Lord Trefgarne, first. He raised a question, which I recall was raised, possibly at a Question Time or possibly when I repeated the Statement on the Agreement, about the timing of the notice to terminate the old Agreement. This point has been repeated by the noble Earl, Lord Kinnoull; it was made by the noble Lord, Lord Boyd-Carpenter, and subsequently by the noble Earl, Lord Alexander of Tunis. I have been asked: Was the CAA consulted in the decision to terminate the 1946 Agreement? Yes, the CAA was consulted, but this question of the timing, as I have made clear in your Lordships' House before, was a matter for decision by the Secretary of State for Trade alone.
Lord TREFGARNE: My Lords, I am obliged to the noble Lord, Lord Oram, for giving way. Of course, it is a matter
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for the Secretary of State alone because he is the representative of the Government. The CAA is not the Government, but I asked the noble Lord whether it agreed to the timing.
Lord ORAM: My Lords, that I do not know; but it was consulted. I accept that no time is ideal for reaching such an important decision. It was a difficult decision, and whatever time had been chosen, I am sure would have come under criticism.
The noble Lord, Lord Trefgarne, asked about British Airways and British Caledonian. They, too, were consulted about the decision to terminate. Indeed, British Airways, to which the noble Lord made special reference, had for a long time made it clear that they were dissatisfied with the 1946 Agreement, and they were fully consulted throughout.
I turn to the question of certificated aircraft. The airworthiness provisions of the 1946 Agreement are maintained in the new Agreement with some minor textual changes. Duly certificated aircraft of either country will be granted landing rights provided that they, and the airlines operating them, comply with the laws and regulations of the other country. Our treaty rights for Concorde are maintained in the new Agreement.
Next, the noble Lord, Lord Trefgarne, asked about Fifth Freedom rights. I think that the noble Earl, Lord Amherst, was also interested in this problem. The new Agreement provides for a considerable reduction in the United States Fifth Freedom rights over London. On the other hand, United Kingdom airlines obtain some useful Fifth Freedom rights beyond the United States to points in Canada, South America and Mexico, and these will be of value to both British Caledonian and British Airways. Under the old Agreement there were no limits to United States rights over London to Frankfurt, but under the new Agreement only two United States airlines will be allowed on this route, one of which must be the airline operating the round the world service, the frequency of which will be limited to seven flights a week in each direction.
The noble Lord, Lord Trefgarne, then asked me about the capacity control and

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whether I would spell that out. He will understand that it will be spelt out in the document to which we look forward, and we shall then be able to go into the matter in more detail. However, I shall merely repeat what I said on an earlier occasion. On North Atlantic routes airlines have to file their plans for each season with both Governments, which can then express dissatisfaction with them. In that event, there is provision for consultations between the Governments. In case of disagreements, the airlines will be entitled to operate fallback levels of frequencies based on not less than the previous equivalent season, plus a growth element. There are a number of detailed provisions which will be published in the Annex to the Agreement.
The noble Lord then went on to ask about charter flights. As I understood it, he stated the general position quite accurately; namely, that for the time being charter air services will continue to be governed by the existing Memorandum of Understanding with the United States on charters, under which it lifted its earlier severe restrictions on the access of our charter airlines to the United States market. It was agreed that this might be developed into a bilateral agreement. However, both sides agreed to work towards a multilateral agreement for all charter services between, on the one side, Europe and, on the other side, the United States and Canada. That is in accordance with recommendations adopted by European Governments in the European Civil Aviation Conference.
In answering the noble Lord, Lord Trefgarne, I have already dealt with some of the points notified to me by the noble Earl, Lord Amherst, but, together with other noble Lords, the noble Earl specifically raised one or two further matters. The noble Earl asked about gains and new routes for the United Kingdom. Without going into details, I would indicate that in the negotiations the United Kingdom gained 14 gateways into the United States, which compares with the nine previously held. So that is an indication of the gain there.
As the noble Earl, Lord Amherst, asked about Los Angeles in relation to single designation, and as a number of other noble Lords have raised this point,
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perhaps I might explain the position regarding Los Angeles. The Statement of 23rd June, which I repeated in your Lordships' House, explains that, like the Americans, we would have the right to designate two of our carriers on two routes. The Americans have already made it clear that their two routes would be New York and Los Angeles. We have announced that Laker will be designated as our second carrier on the New York route so that Mr. Laker can operate his Skytrain service. But the Government's intention—and this particularly relates to one of the concluding recommendations from the noble Lord, Lord BoydCarpenter—is to retain the option to designate a second carrier on some other route, and the Secretary of State for Trade intends to keep that option open.
Although the Americans have decided to keep two of their carriers on Los Angeles, it does not follow that Her Majesty's Government are bound to match them. In fact, we believe that traffic at Los Angeles will be insufficient to justify more than two carriers for some time to come. As a result of the bargaining process which I have described, we have had to accept that there will be two United States carriers against our one. We see no justification for putting a second British carrier on that route and adding to the over-capacity that is likely to result from the existing three airlines.
To some extent this problem will be kept under control by the new capacity mechanism, but I suggest that it would not profit British Caledonian and it would certainly not be in the overall national interest to designate British Caledonian to operate again to Los Angeles. I hope that that deals with points made by a number of those noble Lords who have contributed to the discussion.
The Earl of KINNOULL: My Lords, as this is an important point, I should like to ask the noble Lord a question. I am sure he will agree that the Government have kept open a valuable option on this second designation route. If a British carrier comes to the Government and says, "We believe that we can make good use of this", does the Minister feel that the Government should take note of what that British carrier says, and, if so, has British Caledonian intimated to that effect to the Government?
Lord ORAM: My Lords, clearly at all times the British Government are in close contact both with British Caledonian and with British Airways. We take seriously the representations that they make to us, which would include any representations in respect of Los Angeles. I was answering the points of the noble Earl, Lord Amherst. I think he will agree that I have now answered them; or that I answered them in relation to the noble Lord, Lord Trefgarne—or I can hide behind his kind absolution to me that I need not answer all his points.
Perhaps I may answer just two points made by other noble Lords before I turn specifically to the speech and the argument of the noble Lord, Lord Boyd-Carpenter. The noble Earl, Lord Kinnoull, asked whether I would undertake to look into the different legal powers which the United States has by contrast with ours. Of course, there are these differences. I am not in a position to pontificate upon those differences here this evening, but I give him the undertaking which he sought.
There is one much more general point to the noble Earl, Lord Alexander of Tunis, who said that when the Agreement was announced through the media it was presented as something of a triumph for Britain. If he recalls the Statement that was made by my right honourable friend in another place and which I repeated here, and if he recalls the statements made to Press conferences at that time, he will know that there was no attempt on the part of Her Majesty's Government to present it in that light, as a triumph. Indeed, I would rather quote from Ambassador Boyd—and I am quoting here from a letter in The Times of 15th July 1977, from Sir James Dunnett. He recalled that Ambassador Boyd, in summing up the negotiations, had said:
"This is not a win or lose proposition. I think we both won and the public has won, and that is the way agreements between sovereign nations should work out".
Sir James Dunnett then goes on to say:
"These are remarks that I, for one, would fully endorse".
And I, for two, would fully endorse.
Now may I turn to the specific Question and the specific points made by the noble Lord, Lord Boyd-Carpenter. He calls attention in his Question to
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paragraph 9 of Command Paper No. 6400. That paragraph describes the exchange of routes to be carried out between British Airways and British Caledonian they both agreed as part of the policy review. The paragraph, which I need not read in full, explains that British Caledonian's sphere of interest would include both Central and West Africa and virtually the whole of South America. The relevant part concerning British Caledonian's services to the United States reads as follows:
"It"—
that is, British Caledonian—
"will however retain its licence to serve Atlanta and Houston and it will be the sole British airline designated to operate this route when it becomes available for international services".
Paragraph 2 of the White Paper had noted that British Caledonian had begun services on routes to New York and Los Angeles in April 1973 but discontinued them in November 1974. The difficulties that British Caledonian had faced in establishing itself in the North Atlantic scheduled market in those years were one of the reasons why my right honourable friend Mr. Peter Shore reached the conclusion that a policy of double designation would not be in the best interests of British airlines. Paragraph 8 of the White Paper pointed out that the decision to rule out double designation on long-haul routes would involve the loss to British Caledonian of their existing licences to serve New York, Los Angeles, and Boston. The main features of the new Air Services Agreement with the United States concerning services to Atlanta and Houston will already be known to your Lordships as a result of the Statement to which I have referred several times and which I repeated in the House on 23rd June and the answers which I subsequently gave.
That Agreement provides sole rights for a British carrier to operate a non-stop passenger and cargo service to Houston for three years following signature of the Agreement. A United States carrier will have corresponding sole rights to operate a non-stop service from Atlanta. These were the facts which the noble Lord, Lord Boyd-Carpenter, rehearsed. At the end of the three years' period, both routes will be open to both sides. In the meantime, either side can start an indirect

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service; that is, one making an intermediate stop at another point. This would of course not be very competitive with the direct service, but the opportunity is there; and possibly this has relevance to a point which the noble Earl, Lord Alexander of Tunis, was making in the reverse direction, that is from America.
The paragraph of the White Paper to which Lord Boyd-Carpenter referred contains a statement that British Caledonian will retain its licence to serve Atlanta and Houston and that it will be the sole British airline designated to operate to these points when they become available for international services. British Caledonian does retain its licence to serve Atlanta and Houston. It will be so designated by Her Majesty's Government at the appropriate time following signature of the new Agreement, and in good time before it wishes to start its services. As I said, Houston will be available to it for a non-stop service immediately. Atlanta will become available in three years' time, and I understand that this arrangement accords with British Caledonian's own wishes. I therefore fail to understand why the noble Lord should suggest that we have failed to honour in full either the letter or the spirit of the undertakings given to British Caledonian under the Civil Aviation Policy Review.
Lord BOYD-CARPENTER: My Lords, would the Minister not agree on reflection that it must be wholly contrary to the spirit, and I suggest the letter, of the paragraph, having, as he said, allowed British Caledonian to operate out of Houston, to have signed an Agreement which enables an American carrier to tap a large part of the Houston market by operating out of Dallas/Fort Worth and, at the same time, giving British Caledonian no assurance that it will be free to operate out of Dallas/Fort Worth? It really is no good to say, "I have given you a point A" if, at the same time, somebody else has been given point B which destroys a great deal of the value of point A because it taps that market.
Lord ORAM: I noted those points in the noble Lord's opening speech, my Lords, and I shall come to them in the course of my further remarks.
Lord BOYD-CARPENTER: My Lords, I await those further remarks with eagerness and interest. As the Minister was putting the general point of my question, I think it fair to point to the problem that paragraph 9 says that it may operate on Atlanta as soon as it is open for international service. It will be open for international services this autumn but it will not be allowed to operate on it for three years.
Lord ORAM: My Lords, I hope to pick up those points—perhaps not wholly to the noble Lord's satisfaction, but shall be dealing with them in my own way. I was about to say on this point that there can be no question of compensation for the airline, even if it were accepted that loss of a licence were grounds for compensation.
The main questions that have been raised in the debate are whether British Caledonian will be able to operate to the Southern United States on a viable basis, and whether we have obtained a better deal for them under the new Air Services Agreement than we could under the old Agreement. It has also been argued that we should have obtained more for British Caledonian by preventing competition from a United States carrier on the Dallas/Fort Worth route—the point to which the noble Lord has now returned. The Government believe that, far from complaining about the results, British Caledonian have every reason to be pleased with the outcome of these negotiations. It is relevant, I suggest, to compare the conditions under which they will now operate with what we would have expected under the old Agreement.
Under the first Bermuda, the best we could have hoped to negotiate was new routes to Atlanta and Houston, and possibly to other points, including Dallas, but these would have been available to both sides simultaneously. The United States authorities would have been entitled to designate several of their carriers to operate in competition with British Caledonian, and there would have been no satisfactory provision to enable us to restrain the amount of capacity these carriers could have put on to the routes; and if the American carriers had decided to push British Caledonian off the market by putting on more and bigger aircraft in

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order to capture the traffic, there is little, under Bermuda I, that we could have done to prevent them.
Lord BOYD-CARPENTER: My Lords, I am sorry to continue interrupting the noble Lord, but is he really being realistic? Is he not aware that, in fact, for years past on the North Atlantic the carriers on both sides have arranged voluntary capacity controls? It would have been so obviously in the interests of neither of them to ruin both of them.
Lord ORAM: My Lords, it is very much a question of judgment, but I think that the danger would have been there. Under the greater freedoms to the Americans under Bermuda I, they might well have adopted the policy that I have indicated. Under the new Agreement, not only have we succeeded in obtaining the three years' sole rights that British Caledonian wanted to establish their service to Houston, but we have ensured that not more than one United States airline can be designated on each of these routes; and, further, that when British Caledonian come on to the Atlanta route, their United States competitor will be obliged to restrain its capacity in order to give them a fair chance to become established. This will help British Caledonian to establish themselves on the Atlanta route without fear of swamping of capacity by their competitor. The capacity-regulating mechanism, which is the main novel feature of the new Agreement, will also provide a continuing means of preventing the swamping which occurred under the old Agreement. These provisions on capacity are of considerable value to British Caledonian, and could not possibly have been negotiated under the old Agreement.
The counter argument, to which noble Lords have referred, is that from the start British Caledonian may have to face indirect competition from United States airlines operating to London from Dallas/Fort Worth. This airport, as has been said, is only some 200 miles from Houston, and clearly, I agree, to a considerable extent they are serving the same market. Naturally, British Caledonian would have preferred not to have had to face competition from an American carrier at Dallas—that is perfectly understandable
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—but, unfortunately, it was just not negotiable that British Caledonian should be the only airline on either side able to operate a non-stop service between Texas and London for a three years' period. It was just not "on".
The Americans insisted that the Dallas service could also start once the Agreement was signed and that this would be available to one of their own airlines on a solo basis for three years. However, it should be remembered that British Caledonian can start their Houston service immediately. I am glad to see that they have announced 23rd October as their starting date. But a US airline to start from Dallas has still to be selected by the US authorities. There is a lengthy procedure under US law and possibly it will be accelerated in this case. However, I would suggest to noble Lords that British Caledonian are very likely to have a good head start. It could take several months after British Caledonian's starting date of 23rd October before a US airline can start the Dallas service, but I do not wish to suggest to the House that there can be any guarantee of this. It should be remembered also that estimates by the Civil Aviation Authority show that traffic at Houston should be half as big again as the traffic at Dallas. On this count also British Caledonian appear to have a good bargain.
Both British Caledonian and British Airways have now applied to the Civil Aviation Authority for a licence to serve Dallas/Fort Worth. This relates to the second of the suggestions that the noble Lord, Lord Boyd-Carpenter, has made. The Civil Aviation Authority will be carrying out its statutory duty in deciding whether to issue a licence for this route, and to which of the applicants it should be issued. In the first instance, this is a matter exclusively for the Authority to deal with. My right honourable friend the Secretary of State for Trade has the duty to consider appeals from the decisions of the Civil Aviation Authority, and, since this is a matter which may come to him on appeal, the House will understand that I certainly should not comment further on these applications. However, the Command Paper of February 1976 which was approved by both Houses of Parliament put Dallas/Fort Worth into British Airways' sphere of interest.
Lord BOYD-CARPENTER: My Lords, this is vitally important. Is the noble Lord indicating that the Civil Aviation Authority—although, as he said, it is for them to consider quasi-judicially the two applications—will be bound by his suggestion that the guidance given in 1976 compels them to choose one rather than the other?
Lord ORAM: My Lords, I was merely indicating what is in the Command Paper. It will be for them to make up their minds and it will be for the applicants to appeal if they wish. That is my understanding of the procedure which lies before the applicants.
Lord TREFGARNE: My Lords, as my noble friend has said, this is a vital point. Is the noble Lord aware—and perhaps he will correct me if I am wrong—that the Secretary of State has powers to direct the CAA in cases where the international implications appear to him to be paramount? Has he considered making such a direction in the case of these two applications?
Lord ORAM: My Lords, I am not personally in a position to know whether my right honourable friend has taken up that matter, but I will inquire and let the noble Lord know.
I do not accept that the sole rights that the Americans will have on Dallas for three years unbalances the Agreement as a whole. That has been the implication of much that has been said this evening. The US advantage on this route is upset by the fact that, while Manchester is available to us immediately, the Americans cannot start operations on their 15th gateway for three years. British Caledonian have expressed concern that the Americans will select a southern city as their 15th gateway, and that their services to Houston and Atlanta will suffer as a result. I do not think that the noble Lord made this point but it is a point which has been made. But the 15th United States gateway will have to be agreed with Her Majesty's Government and cannot be imposed upon us by the Americans.
We have also succeeded in obtaining for British Caledonian some Fifth Freedom rights to enable them to carry traffic from Atlanta or Houston to points in South America in their sphere
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of interest. We could not have secured these rights under the old Agreement. I understand that British Caledonian themselves said during the negotiations that these rights would be of considerable potential benefit, and I have no doubt that this may be so, since I believe that no airlines are currently operating direct services between the cities concerned. If British Caledonian wish, the Department of Trade are ready to open negotiations for corresponding rights from the other countries concerned. The ability to combine services to South America with the new services to Houston and Atlanta will give British Caledonian new commercial opportunities and greater flexibilities.
I must explain the position regarding all-cargo services. The noble Lord, Lord Boyd-Carpenter, was rather more up to date in this matter than his noble friend Lord Alexander. I confirm what the noble Lord, Lord Boyd-Carpenter, says: that British Caledonian are entitled to operate an all-cargo service to Houston immediately, and I understand that they intend to start this October; but a United States carrier will not be entitled to operate a similar service for three years. I think that is what the noble Lord said.
Lord BOYD-CARPENTER: My Lords, I was informed, with his habitual courtesy, by the Secretary of State that the position was now as the noble Lord has indicated. I understand that when the Agreement was initialled the United States could have put their cargo service on at once but there has been some subsequent negotiation. Is that a fact?
Lord ORAM: My Lords, I believe that to be the position, yes. At Atlanta the Americans will have no right to operate a direct all-cargo service, whereas in three years British Caledonian will be able to operate both passenger and all-cargo services there direct.
The Americans' agreement that their carriers on these routes should go into Gatwick and not to Heathrow is another achievement of the new Agreement and perhaps one of the most important to British Caledonian. Under the old Agreement, we could not have prevented the United States carriers from operating to Heathrow, and this would have put British Caledonian at a considerable disadvantage. The fact that all the carriers

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of both sides will have to operate to Gatwick will put matters on an equal basis and British Caledonian should be very satisfied that this will be so. They must also be glad at the great stimulus this will give to the build-up of Gatwick as a major scheduled service airport serving London. I hope that it will encourage other scheduled service airlines to move from Heathrow to Gatwick, both for long haul services like those to Atlanta and Houston and for the vital connecting services to Europe and other easterly points.
I suggest that all these gains for British Caledonian that we have secured under the new Agreement amount to far more than either we or they could reasonably have expected when we opened negotiations or, indeed, when the Civil Aviation Policy Review was completed last year. I accept that the Government did not secure all their objectives in these negotiations, and that British Caledonian have not secured 100 per cent. of their objectives. But we have not at any time claimed that we have obtained all our objectives. The Secretary of State was careful, in the Statement which I read to this House on 23rd June, to claim only that the new Agreement
"will give British airlines a fairer opportunity to fight for a bigger share of a growing market".
It is not to be expected in any negotiations that one will achieve all the targets with which one goes into the negotiations. We have had to give way on a number of points and to make a number of concessions to the Americans. In return, the United States have moved a long way towards us. It is the Government's strong belief, from the point of view both of our civil aviation interests in general and of British Caledonian in particular, that we have secured the best we could from these negotiations. Certainly we could have achieved nothing like these results unless we had served notice of
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termination of the old Agreement. The deal, in so far as it affects British Caledonian, will give them improved new opportunities and several vital safeguards. They will be starting their Houston service in October. The Government hope that British Caledonian will in this way begin to maximise the opportunities for growth that have been created for them.
In conclusion, my Lords, I apologise for great length of my statement, but that is a reflection of the great importance of the subject that has been raised, and of the fact that noble Lords spread it out well beyond the strict limitation of the Question. If there is a fault, it is not mine but the fault of your Lordships' House.

GREATER LONDON COUNCIL (MONEY) BILL
Reported from the Unopposed Bill Committee (on Re-commitment) without Amendment.
WATER CHARGES EQUALISATION BILL
Returned from the Commons with certain Lords Amendments agreed to; with one Lords Amendment agreed to with Amendments; with the remaining Lords Amendments disagreed to with a Reason for such disagreement; the Commons Amendments and Reason to be printed.
PRICE COMMISSION BILL
Returned from the Commons with one Lords Amendment disagreed to with a Reason for such disagreement; the said Reason to be printed.